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08-4211-cr(L)
United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket Nos. 08-4211-cr(L), 09-0074-cr(con), 09-0610-cr(con), 09-1493-cr(con), 09-3266-cr(con), 09-3801-cr(con)
UNITED STATES OF AMERICA,Appellee,
(caption continued on inside cover)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR THE UNITED STATES OF AMERICA
PREET BHARARA,United States Attorney for the
Southern District of New York,
Attorney for the United States
of America.
To Be Argued By:DAVID B. MASSEY
DAVID B. MASSEY,MATTHEW L. SCHWARTZ,ANDREW L. FISH,
Assistant United States Attorneys,
Of Counsel.
09-0074-cr(con), 09-0610-cr(con),09-1493-cr(con), 09-3266-cr(con),09-3801-cr(con)
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—v.—
NIKOLAI NADIRASHVILI, also known as Nikoloz Nadirashvili,also known as Nikush, LEVAN CHVELIDZE, DIMITRIYVOROBEYCHIK, IOSEB KHARABADZE, also known as Soso andCHRISTIAAN DEWET SPIES, also known as David, ARTURSOLOMONYAN, also known as Alex,
Defendants-Appellants,
JOSEPH COLPANI, also known as Joe, MICHAEL GUY DEMARE,also known as Michel, ARMEN RAZMIK BARSEGHYAN,SPARTAK VAHAGN YERIBEKYAN, LEVON SOLOMONYAN,ALLAH MCQUEEN, RAJAB CHAVIS, also known as Jabs, alsoknown as Keith Chavis, GAREGIN GASPARYAN, also known asGarik, MICHAEL JIMENEZ, also known as Mike, NIEMANMYLES, also known as Luis, WILLIAM JESUS THOMAS,VAKHTANG MACHITIDZE, TIGRAN GEVORGYAN, also knownTiko, ARMAND ABRAMIAN, also known as Armo,
Defendants.
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TABLE OF CONTENTS
PAGE
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. The Government’s Case. . . . . . . . . . . . . . . . . . . . 5
1. Overview of the Two Weapons
Trafficking Schemes. . . . . . . . . . . . . . . . . . . . 5
2. The Overseas Weapons Trafficking
Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
a. Spies and Solomonyan Offer To Sell
Weapons to Davis. . . . . . . . . . . . . . . . . . . 8
b. Kharabadze’s Efforts To Obtain
Arms Overseas . . . . . . . . . . . . . . . . . . . . . 9
c. Kharabadze’s Overseas Arms Price
List.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
d. The June 2004 Meetings. . . . . . . . . . . . . 11
e. Surplus Weapons in Armenia. . . . . . . . . 13
f. The January 2005 Meeting . . . . . . . . . . . 13
g. Photographs of the Overseas
Weapons. . . . . . . . . . . . . . . . . . . . . . . . . 14
h. The March 2005 Meeting. . . . . . . . . . . . 16
3. The Domestic Gun Trafficking Offenses. . . 17
a. Nadirashvili and Chvelidze Agree To
Help Solomonyan Obtain
Machineguns. . . . . . . . . . . . . . . . . . . . . . 18
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PAGE
b. Vorobeychik Introduces Solomonyan
to a Dealer To Obtain Guns.. . . . . . . . . . 20
c. Additional Firearms.. . . . . . . . . . . . . . . . 22
4. Solomonyan’s Post-Arrest Statement . . . . . 23
B. The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . 23
ARGUMENT:
POINT I — The Evidence Was Sufficient to Support
the Jury’s Verdicts on the Overseas Arms
Trafficking Offenses. . . . . . . . . . . . . . . . . . . . . . . . 25
A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 26
1. Sufficiency of the Evidence. . . . . . . . . . . . . 26
2. Engaging in the Business of Brokering
Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
a. The Statute and Regulations. . . . . . . . . . 29
b. Brokering Activities. . . . . . . . . . . . . . . . 31
c. Foreign Defense Articles: The United
States Munitions List.. . . . . . . . . . . . . . . 31
d. Registration and Licensing
Requirements. . . . . . . . . . . . . . . . . . . . . . 33
3. Transportation of a Machinegun or
Destructive Device. . . . . . . . . . . . . . . . . . . . 35
4. Aiding and Abetting Liability. . . . . . . . . . . . 36
5. Pinkerton Liability. . . . . . . . . . . . . . . . . . . . 38
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B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
1. There Was Sufficient Evidence of
Kharabadze’s Intent. . . . . . . . . . . . . . . . . . . 40
2. There Was Sufficient Evidence that the
Price List Included Munitions List Items
and a Machinegun or Destructive Device. . . 43
3. The Government Was Not Required to
Prove that Kharabadze Personally
Negotiated the Prices of an Arms Deal or
that He Had a Financial Stake in the Deal. . 45
4. The Duration of Kharabadze’s
Participation in the Scheme. . . . . . . . . . . . . 47
5. The Government Was Not Required to
Prove that Kharabadze Had Direct
Contact with Any Weapons Suppliers in
Eastern Europe or Elsewhere. . . . . . . . . . . . 50
6. Count Two: Aiding and Abetting and
Pinkerton Liability. . . . . . . . . . . . . . . . . . . . 51
a. Aiding and Abetting . . . . . . . . . . . . . . . . 51
b. Pinkerton. . . . . . . . . . . . . . . . . . . . . . . . . 53
POINT II — The Evidence Was Sufficient to Support
the Jury’s Verdicts on the Domestic Gun
Trafficking Offenses . . . . . . . . . . . . . . . . . . . . . . . . 54
A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 55
1. Unlicensed Firearms Dealing. . . . . . . . . . . . 55
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2. Transfer or Possession of a Machinegun. . . 56
B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1. Nadirashvili and Chvelidze.. . . . . . . . . . . . . 56
2. Vorobeychik. . . . . . . . . . . . . . . . . . . . . . . . . 58
3. Solomonyan and Spies. . . . . . . . . . . . . . . . . 63
POINT III — The Arms Export Control Act Is Not
Unconstitutionally Vague.. . . . . . . . . . . . . . . . . . . . 64
A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 64
1. Vagueness Challenges. . . . . . . . . . . . . . . . . 64
2. The Arms Export Control Act.. . . . . . . . . . . 67
B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
POINT IV — The District Court Acted Within Its
Discretion in Denying Nadirashvili’s Severance
Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . 75
1. The District Court’s Denial of a
Severance. . . . . . . . . . . . . . . . . . . . . . . . . . . 75
2. Jury Instructions. . . . . . . . . . . . . . . . . . . . . . 76
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 77
C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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POINT V — The District Court Properly Found that
No Due Process Violation Occurred As a Result of
Davis’s Destruction of a Small Number of
Recordings of His Conversations with an FBI
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
A. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . 84
1. The Reconstruction Hearing. . . . . . . . . . . . . 84
2. Davis’s Availability To Testify at Trial. . . . 87
3. Trial Testimony.. . . . . . . . . . . . . . . . . . . . . . 87
a. Testimony Concerning the Destroyed
Recordings.. . . . . . . . . . . . . . . . . . . . . . . 87
b. Testimony Concerning Renumeration
and Reward. . . . . . . . . . . . . . . . . . . . . . . 89
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 89
C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
POINT VI — The District Court Properly Denied
Kharabadze’s Motion for a Mistrial Based on the
Production of Telephone Records. . . . . . . . . . . . . . 94
A. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . 94
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 99
C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
POINT VII — The District Court Acted Within Its
Discretion in Declining To Allow Foreign
Language Recordings To Be Played During Trial. 102
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A. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . 103
1. Translations Offered at Trial.. . . . . . . . . . . 103
2. Chvelidze’s Expert Witness . . . . . . . . . . . . 106
3. Jury Instructions. . . . . . . . . . . . . . . . . . . . . 107
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . 108
C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
POINT VIII — The Government’s Jury Addresses
Did Not Deprive the Defendants of a Fair Trial . . 113
A. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . 113
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . 120
C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
POINT IX — The Jury Instructions Were Proper. . . 123
A. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . 124
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . 127
C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
1. Spies’s Challenges. . . . . . . . . . . . . . . . . . . 128
2. Kharabadze’s Challenge to the Brokering
Instruction. . . . . . . . . . . . . . . . . . . . . . . . . . 131
POINT X — The Challenges to the District Court’s
Guidelines Calculations Should Be Rejected.. . . . 132
A. Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . 133
B. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . 137
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1. Sentencing Review Generally. . . . . . . . . . . 137
2. Review of Guidelines Calculations.. . . . . . 139
B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
1. The District Court Properly Applied
U.S.S.G. § 2X1.1. . . . . . . . . . . . . . . . . . . . 140
2. The District Court Properly Applied
U.S.S.G. § 2K2.1 To Determine the Base
Offense Level for Count One. . . . . . . . . . . 142
3. The District Court Properly Applied a
15-Level Enhancement for Portable
Rocket or Missile. . . . . . . . . . . . . . . . . . . . 144
4. The District Court Properly Applied an
Enhancement Based on the Number of
Firearms. . . . . . . . . . . . . . . . . . . . . . . . . . . 146
5. The District Court Properly Applied a
Leadership Role Enhancement. . . . . . . . . . 147
6. The District Court Properly Applied
Enhancements for Obstruction of Justice. . 150
a. The Obstruction of Justice
Enhancement. . . . . . . . . . . . . . . . . . . . . 150
b. Nadirashvili’s Obstruction. . . . . . . . . . 152
c. Solomonyan’s Obstruction. . . . . . . . . . 153
7. Harmless Error. . . . . . . . . . . . . . . . . . . . . . 154
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POINT XI — The District Court Correctly “Stacked”
Solomonyan’s Sentences. . . . . . . . . . . . . . . . . . . . 155
A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . 155
B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
TABLE OF AUTHORITIES
Cases:
Apprendi v. New Jersey,
530 U.S. 466 (2000).. . . . . . . . . . . . . . . . . . . . . . 155
Bryan v. United States,
524 U.S. 184 (1998).. . . . . . . . . . . . . . . . . . . . . . . 42
Buie v. Sullivan,
923 F.2d 10 (2d Cir. 1990).. . . . . . . . . . . . . . . 90, 93
California v. Brown,
479 U.S. 538 (1987).. . . . . . . . . . . . . . . . . . . . . . 128
California v. Trombetta,
467 U.S. 479 (1984).. . . . . . . . . . . . . . . . . . . . . . . 90
Chapman v. United States,
500 U.S. 453 (1991).. . . . . . . . . . . . . . . . . . . . . . . 66
Colon v. Kuhlmann,
865 F.2d 29 (2d Cir. 1988).. . . . . . . . . . . . . . . . . . 90
Columbia Natural Resources, Inc. v. Tatum,
58 F.3d 1101 (6th Cir. 1995). . . . . . . . . . . . . . . . . 66
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Gall v. United States,
552 U.S. 38 (2007).. . . . . . . . . . . . . . . 137, 138, 139
Grayned v. City of Rockford,
408 U.S. 104 (1972).. . . . . . . . . . . . . . . . . . . . . . . 65
Griffin v. United States,
502 U.S. at 56-57. . . . . . . . . . . . . . . . . . . . . . . . . . 57
Jackson v. Virginia,
443 U.S. 307 (1979).. . . . . . . . . . . . . . . . . . . . . . . 28
Kolender v. Lawson,
461 U.S. 352 (1983).. . . . . . . . . . . . . . . . . . . . 65, 69
Kotteakos v. United States,
328 U.S. 750 (1946).. . . . . . . . . . . . . . . . . . . . . . 111
Pinkerton v. United States,
328 U.S. 640 (1946).. . . . . . . . . . . 26, 38, 51, 53, 54
Posters 'N' Things, Ltd. v. United States,
511 U.S. 513 (1994).. . . . . . . . . . . . . . . . . . . . . . . 66
Richardson v. Marsh,
481 U.S. 200 (1987).. . . . . . . . . . . . . . . . . . . . . . . 79
Rita v. United States,
551 U.S. 338 (2007).. . . . . . . . . . . . . . . . . . . . . . 139
Rosario v. United States,
164 F.3d 729 (2d Cir. 1998).. . . . . . . . . . . . . . . . . 38
Rose v. Locke,
423 U.S. 48 (1975).. . . . . . . . . . . . . . . . . . . . . . . . 67
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Santos v. Keane,
1997 WL 414121 (S.D.N.Y. July 24, 1997). . . . 110
Skilling v. United States,
130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . 64, 66
In re United States (Coppa),
267 F.3d 132 (2d Cir. 2001).. . . . . . . . . . . . . . . . 102
United States v. Ali,
68 F.3d 1468 (2d Cir. 1995).. . . . . . . . . . . . . . . . . 43
United States v. Aloi,
511 F.2d 585 (2d Cir. 1975).. . . . . . . . . . . . . . . . . 81
United States v. Amer,
110 F.3d 873 (2d Cir. 1997).. . . . . . . . . . . . . . . . . 66
United States v. Aulet,
618 F.2d 182 (2d Cir. 1980).. . . . . . . . . . . . . . . . 109
United States v. Autuori,
212 F.3d 105 (2d Cir. 2000).. . . . . . . . . . . . . . . . . 27
United States v. Bahadar,
954 F.2d 821 (2d Cir. 1992).. . . . . . . . . . . . . . . . 110
United States v. Bakhtiar,
994 F.2d 970 (2d Cir. 1993).. . . . . . . . . . . . . . 91, 94
United States v. Bari,
750 F.2d 1169 (2d Cir. 1984).. . . . . . . . . . . . . 82, 83
United States v. Bautista,
23 F.3d 726 (2d Cir. 1994).. . . . . . . . . . . . . . . . . 121
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United States v. Beaulieau,
959 F.2d 375 (2d Cir. 1992).. . . . . . . . . . . . . . . . 148
United States v. Ben-Shimon,
249 F.3d 98 (2d Cir. 2001).. . . . . . . . . . . . . . . . . 109
United States v. Berger,
224 F.3d 107 (2d Cir. 2000).. . . . . . . . . . . . . . . . . 28
United States v. Best,
219 F.3d 192 (2d Cir. 2000).. . . . . . . . . . . . . . . . . 37
United States v. Bilzerian,
926 F.2d 1285 (2d Cir. 1991).. . . . . . . . . . . . . . . . 28
United States v. Borelli,
435 F.2d 500 (2d Cir. 1970).. . . . . . . . . . . . . . . . . 78
United States v. Broderson,
67 F.3d 452 (2d Cir. 1995).. . . . . . . . . . . . . . . . . 145
United States v. Bruno,
383 F.3d 65 (2d Cir. 2004).. . . . . . . . . . . . . . 38, 111
United States v. Bryant,
480 F.2d 785 (2d Cir. 1973).. . . . . . . . . . . . . . . . 110
United States v. Bryser,
954 F.2d 79 (2d Cir. 1992).. . . . . . . . . . . . . . . . . . 38
United States v. Canova,
412 F.3d 331 (2d Cir. 2005).. . . . . . . . . . . . . . . . 151
United States v. Carr,
880 F.2d 1550 (2d Cir. 1989).. . . . . . . . . . . . . . . 128
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United States v. Carrera,
1998 WL 903467 (E.D.N.Y. Dec. 21, 1998). . . . 110
United States v. Carson,
702 F.2d 351 (2d Cir. 1983).. . . . . . . . . . . . . . . . . 81
United States v. Carter,
801 F.2d 78 (2d Cir. 1986).. . . . . . . . . . . . . . . . . . 56
United States v. Casamento,
887 F.2d 1141 (2d Cir. 1989).. . . . . . . . . . 80, 81, 82
United States v. Catano-Alzate,
62 F.3d 41 (2d Cir. 1995).. . . . . . . . . . . . . . . . . . 151
United States v. Cavera,
550 F.3d 180 (2d Cir. 2008).. . . . . . . . 137, 138, 139
United States v. Cawley,
48 F.3d 90 (2d Cir. 1995).. . . . . . . . . . . . . . . . . . 152
United States v. Chalarca,
95 F.3d 239 (2d Cir. 1996).. . . . . . . . . . . . . 109, 110
United States v. Cirillo,
499 F.2d 872 (2d Cir. 1974).. . . . . . . . . . . . . . . . . 29
United States v. Coriaty,
300 F.3d 244 (2d Cir. 2002).. . . . . . . . . . . . . . . . 121
United States v. D'Amato,
39 F.3d 1249 (2d Cir. 1994).. . . . . . . . . . . . . . . . . 27
United States v. D'Amato,
493 F.2d 359 (2d Cir. 1974).. . . . . . . . . . . . . . . . . 48
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United States v. DeNoia,
451 F.2d 979 (2d Cir. 1971).. . . . . . . . . . . . . . . . . 48
United States v. Desena,
287 F.3d 170 (2d Cir. 2002).. . . . . . . . . . . . . . . . . 27
United States v. Diaz,
176 F.3d 52 (2d Cir. 1999).. . . . . . . . . . . . . . . 62, 81
United States v. Dunnigan,
507 U.S. 87 (1993).. . . . . . . . . . . . . . . . . . . 151, 154
United States v. Edwards,
342 F.3d 168 (2d Cir. 2003).. . . . . . . . . . . . . . . . 121
United States v. Escotto,
121 F.3d 81 (2d Cir. 1997).. . . . . . . . . . . . . . . . . 149
United States v. Espinal,
981 F.2d 664 (2d Cir. 1992).. . . . . . . . . . . . . . . . 121
United States v. Euceda-Hernandez,
768 F.2d 1307 (11th Cir. 1985). . . . . . . . . . . . . . 101
United States v. Farmer,
583 F.3d 131 (2d Cir. 2009).. . . . . . . . . . . . . . . . 122
United States v. Feyrer,
333 F.3d 110 (2d Cir. 2003).. . . . . . . . . . . . . . 79, 80
United States v. Fitzgerald,
232 F.3d 315 (2d Cir. 2000).. . . . . . . . . . . . . . . . 145
United States v. Flaharty,
295 F.3d 182 (2d Cir. 2002).. . . . . . . . . . . . . 49, 145
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United States v. Fleming,
397 F.3d 95 (2d Cir. 2005).. . . . . . . . . . . . . . . . . 138
United States v. Franco,
136 F.3d 622 (9th Cir. 1998). . . . . . . . . . . . . . . . 109
United States v. Frank,
520 F.2d 1287 (2d Cir. 1975).. . . . . . . . . . . . . . . . 29
United States v. Friedman,
300 F.3d 111 (2d Cir. 2002).. . . . . . . . . . . . . . . . . 63
United States v. Gagliardi,
506 F.3d 140 (2d Cir. 2007).. . . . . . . . . . . . . . . . . 65
United States v. Gallerani,
68 F.3d 611 (2d Cir. 1995).. . . . . . . . . . . . . . . 38, 39
United States v. Gallo,
668 F. Supp. 736 (E.D.N.Y. 1987). . . . . . . . . 80, 81
United States v. Garcia,
413 F.3d 201 (2d Cir. 2005).. . . . . . . . . . . . . . . . 140
United States v. Gaskin,
364 F.3d 438 (2d Cir. 2004).. . . . . . . . . . . . . . 26, 27
United States v. Geibel,
369 F.3d 682 (2d Cir. 2004).. . . . . . . . . . . . . 49, 145
United States v. Gigante,
166 F.3d 75 (2d Cir. 1999).. . . . . . . . . . . . . . . . . 110
United States v. Giraldo,
822 F.2d 205 (2d Cir. 1987).. . . . . . . . . . . . . . . . 101
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United States v. Gleason,
616 F.2d 2 (2d Cir. 1979).. . . . . . . . . . . . . . . . . . . 28
United States v. Gordils,
982 F.2d 64 (2d Cir. 1992).. . . . . . . . . . . . . . . . . . 29
United States v. Gordon,
987 F.2d 902 (2d Cir. 1993).. . . . . . . . . . . . . . 27, 40
United States v. Gotti,
459 F.3d 296 (2d Cir. 2006).. . . . . . . . . . . . . . . . 140
United States v. Gottlieb,
493 F.2d 987 (2d Cir. 1974).. . . . . . . . . . . . . . . . 120
United States v. Gregg,
829 F.2d 1430 (8th Cir. 1987). . . . . . . . . . . . . . . . 70
United States v. Guadagna,
183 F.3d 122 (2d Cir. 1999).. . . . . . . . . . . . . . . . . 27
United States v. Hamilton,
334 F.3d 170 (2d Cir. 2003).. . . . . . . . . . . . . . . . . 37
United States v. Harwood,
998 F.2d 91 (2d Cir. 1993).. . . . . . . . . . . . . . . . . . 39
United States v. Hernandez,
85 F.3d 1023 (2d Cir. 1996).. . . . . . . . . . . . . . 79, 83
United States v. Herrera,
584 F.2d 1137 (2d Cir. 1978).. . . . . . . . . . . . . . . . 67
United States v. Hertular,
562 F.3d 433 (2d Cir. 2009).. . . . . . . . . . . . . . . . 148
Page 18
xvi
PAGE
United States v. Hsu,
364 F.3d 192 (4th Cir. 2004). . . . . . . . . . . . . . 70, 74
United States v. Ivezaj,
568 F.3d 88 (2d Cir. 2009).. . . . . . . . . . . . . . . . . 148
United States v. Jackson,
335 F.3d 170 (2d Cir. 2003).. . . . . . . . . . . . . 28, 109
United States v. Jass,
569 F.3d 47 (2d Cir. 2009).. . . . . . . . . . . . . . . . . 154
United States v. Johnson,
513 F.2d 819 (2d Cir. 1975).. . . . . . . . . . . . . . . . . 29
United States v. Jones,
30 F.3d 276 (2d Cir. 1994).. . . . . . . . . . . . . . . . . 128
United States v. Jordan,
927 F.2d 53 (2d Cir. 1991).. . . . . . . . . . . . . . . . . . 38
United States v. Kelly,
147 F.3d 172 (2d Cir. 1998).. . . . . . . . . . . . . . . . 151
United States v. Lee,
183 F.3d 1029 (9th Cir. 1999). . . . . . . . . . . . . 70, 74
United States v. Lincecum,
220 F.3d 77 (2d Cir. 2000).. . . . . . . . . . . . . . . . . 153
United States v. Locascio,
6 F.3d 924 (2d Cir. 1993).. . . . . . . . . . . . . . . 81, 121
United States v. Lorenzo,
534 F.3d 153 (2d Cir. 2008).. . . . . . . . . . . . . . . . . 62
Page 19
xvii
PAGE
United States v. Lyles,
593 F.2d 182 (2d Cir. 1979).. . . . . . . . . . . . . . . . . 78
United States v. Malpeso,
115 F.3d 155 (2d Cir. 1997).. . . . . . . . . . . . . . . . 143
United States v. Marin,
513 F.2d 974 (2d Cir. 1975).. . . . . . . . . . . . 109, 110
United States v. Marrale,
695 F.2d 658 (2d Cir. 1982).. . . . . . . . . . . . . . . . 120
United States v. Marshall,
132 F.3d 63 (D.C. Cir. 1998). . . . . . . . . . . . . . . . 101
United States v. Martino,
759 F.2d 998 (2d Cir. 1985).. . . . . . . . . . . . . . . . . 28
United States v. Matthews,
20 F.3d 538 (2d Cir. 1994).. . . . . . . . . . . . . . 27, 100
United States v. McDermott,
245 F.3d 133 (2d Cir. 2001).. . . . . . . . . . . . . . 27, 60
United States v. McLean,
287 F.3d 127 (2d Cir. 2002).. . . . . . . . . . . . 157, 159
United States v. McLeod,
251 F.3d 78 (2d Cir. 2001).. . . . . . . . . . . . . 156, 158
United States v. Melendez,
57 F.3d 238 (2d Cir. 1995).. . . . . . . . . . . . . . . . . 121
United States v. Miranda-Ortiz,
926 F.2d 172 (2d Cir. 1991).. . . . . . . . . . . . . . . . . 28
Page 20
xviii
PAGE
United States v. Mulder,
273 F.3d 91 (2d Cir. 2001).. . . . . . . . . . . . . . . . . 128
United States v. Nadi,
996 F.2d 548 (2d Cir. 1993).. . . . . . . . . . . . . . . . . 66
United States v. Nersesian,
824 F.2d 1294 (2d Cir. 1987).. . . . . . . . . . . . . 48, 82
United States v. Outen,
286 F.3d 622 (2d Cir. 2002).. . . . . . . . . . . . . . . . 157
United States v. Papadakis,
510 F.2d 287 (2d Cir. 1975).. . . . . . . . . . . . . . . . . 28
United States v. Payne,
63 F.3d 1200 (2d Cir. 1995).. . . . . . . . . . . . . . . . 148
United States v. Pedroza,
750 F.2d 187 (2d Cir. 1984).. . . . . . . . . . . . . . . . . 29
United States v. Peterson,
808 F.2d 969 (2d Cir.1987). . . . . . . . . . . . . . . . . 122
United States v. Pimentel,
83 F.3d 55 (2d Cir. 1996).. . . . . . . . . . . . . . . . . . . 38
United States v. Pipola,
83 F.3d 556 (2d Cir. 1996).. . . . . . . . . . . . . . . . . . 37
United States v. Plitman,
194 F.3d 59 (2d Cir. 1999).. . . . . . . . . . . . . . . . . . 27
United States v. Pujana-Mena,
949 F.2d 24 (2d Cir. 1991).. . . . . . . . . . . . . . . . . 128
Page 21
xix
PAGE
United States v. Rahman,
189 F.3d 88 (2d Cir. 1999).. . . . . . . . . 90, 91, 92, 93
United States v. Rahman,
854 F. Supp. 254 (S.D.N.Y 1994). . . . . . . . . . . . . 83
United States v. Ramirez,
320 Fed. Appx. 7 (2d Cir. 2009). . . . . . . . . . . . . 155
United States v. Rastelli,
870 F.2d 822 (2d Cir. 1989).. . . . . . . . . . . 90, 91, 92
United States v. Rea,
958 F.2d 1206 (2d Cir. 1992).. . . . . . . . . . . . . . . 111
United States v. Resto,
824 F.2d 210 (2d Cir. 1987).. . . . . . . . . . . . . . . . 122
United States v. Rigas,
490 F.3d 208 (2d Cir. 2007).. . . . . . . . . . . . . . . . 138
United States v. Rivera,
282 F.3d 74 (2d Cir. 2002).. . . . . . . . . . . . . . . . . 157
United States v. Rivera,
971 F.2d 876 (2d Cir. 1992).. . . . . . . . . . . . . . . . 120
United States v. Roberts,
363 F.3d 118 (2d Cir. 2004).. . . . . . . . . . . . . . . . . 65
United States v. Robinson,
485 U.S. 25 (1988).. . . . . . . . . . . . . . . . . . . . . . . 120
United States v. Rodriguez,
392 F.3d 539 (2d Cir. 2004).. . . . . . . . . . . . . . . . . 63
Page 22
xx
PAGE
United States v. Rodriguez,
968 F.2d 139 (2d Cir. 1992). . . . . . . . . . . . . . . . 121
United States v. Romero,
54 F.3d 56 (2d Cir. 1995).. . . . . . . . . . . . . . . . . . . 79
United States v. Romero,
897 F.2d 47 (2d Cir. 1990).. . . . . . . . . . . . . . . . . . 38
United States v. Rosa,
11 F.3d 315 (2d Cir. 1993).. . . . . . . . . . . . . . . 78, 81
United States v. Rosa,
17 F.3d 1531 (2d Cir. 1994).. . . . . . . . . . . . . . . . 142
United States v. Rybicki,
354 F.3d 124 (2d Cir. 2003).. . . . . . . . . . . . . . . . . 65
United States v. SKW Metals & Alloys, Inc.,
195 F.3d 83 (2d Cir. 1999).. . . . . . . . . . . . . . . . . 109
United States v. Salameh,
152 F.3d 88 (2d Cir. 1998).. . . . . . . . . . . . . . . 39, 81
United States v. Salim,
549 F.3d 67 (2d Cir. 2008).. . . . . . . . . . . . . 151, 152
United States v. Samaria,
239 F.3d 228 (2d Cir. 2001).. . . . . . . . . . . 28, 37, 63
United States v. Scarpa,
913 F.2d 993 (2d Cir. 1990).. . . . . . . . . . . . . . 81, 82
United States v. Selioutsky,
409 F.3d 114 (2d Cir. 2005).. . . . . . . . . . . . . . . . 140
Page 23
xxi
PAGE
United States v. Simmons,
923 F.2d 934 (2d Cir. 1991).. . . . . . . . . . . . . . . . 120
United States v. Solomonyan,
452 F. Supp. 2d 334 (S.D.N.Y. 2006). . . . . . . . . . 75
United States v. Soto,
959 F.2d 1181 (2d Cir. 1992).. . . . . . . . . . . . . . . . 29
United States v. Stevens,
985 F.2d 1175 (2d Cir. 1993).. . . . . . . . . . . 100, 102
United States v. Strauss,
999 F.2d 692 (2d Cir. 1993).. . . . . . . . . . . . . . . . . 66
United States v. Sun,
278 F.3d 302 (4th Cir. 2002). . . . . . . . . . . 68, 70, 74
United States v. Swarovski,
592 F.2d 131 (2d Cir. 1979).. . . . . . . . . . . . . . 70, 74
United States v. Thai,
29 F.3d 785 (2d Cir. 1994).. . . . . . . . . . . . . . . . . 100
United States v. Thomas,
377 F.3d 232 (2d Cir. 2004).. . . . . . . . . . . . 121, 122
United States v. Thompson,
29 F.3d 62 (2d Cir. 1994).. . . . . . . . . . . . . . . . . . 121
United States v. Thorn,
446 F.3d 378 (2d Cir. 2006).. . . . . . . . . . . . . . . . 139
United States v. Torres,
604 F.3d 58 (2d Cir. 2010).. . . . . . . . . . . . . . . . . . 62
Page 24
xxii
PAGE
United States v. Tropeano,
252 F.3d 653 (2d Cir. 2001).. . . . . . . . . . . . . . . . 129
United States v. Turoff,
853 F.2d 1037 (2d Cir. 1988).. . . . . . . . . . . . . . . . 78
United States v. Ulerio,
859 F.2d 1144 (2d Cir. 1988).. . . . . . . 109, 110, 111
United States v. Valenzuela-Bernal,
458 U.S. 858 (1982).. . . . . . . . . . . . . . . . . . . . . . . 90
United States v. Vasquez,
389 F.3d 65 (2d Cir. 2004).. . . . . . . . . . . . . . . . . 140
United States v. Velez,
357 F.3d 239 (2d Cir. 2004).. . . . . . . . . . . . 141, 142
United States v. Villegas,
899 F.2d 1324 (2d Cir. 1990).. . . . . . . . . . . . . . . . 83
United States v. Walsh,
119 F.3d 115 (2d Cir. 1997).. . . . 149, 152, 153, 154
United States v. White,
240 F.3d 127 (2d Cir. 2001).. . . . . . . . . . . . . . . . 156
United States v. White,
552 F.3d 240 (2d Cir. 2009).. . . . . . . . . . . . . . . . 128
United States v. Wilkerson,
361 F.3d 717 (2d Cir. 2004).. . . . . . . . . . . . . . . . 128
United States v. Williams,
79 F.3d 334 (2d Cir. 1996).. . . . . . . . . . . . . . . . . 153
Page 25
xxiii
PAGE
United States v. Yakou,
428 F.3d 241 (D.C. Cir. 2005). . . . . . . . . . . . . . . . 71
United States v. Yannotti,
541 F.3d 112 (2d Cir. 2008).. . . . . . . . . . . . . . . . . 49
United States v. Young,
470 U.S. 1 (1985).. . . . . . . . . . . . . . . . . . . . . . . . 121
United States v. Yousef,
327 F.3d 56 (2d Cir. 2003).. . . . . . . . . . . . . . . 80, 84
United States v. Zafiro,
945 F.2d 881 (7th Cir. 1991), aff'd, 506 U.S.
534 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
United States v. Zagari,
111 F.3d 307 (2d Cir. 1997).. . . . . . . . . . . . . . . . 151
United States v. Zambrano,
776 F.2d 1091 (2d Cir. 1985).. . . . . . . . . . . . . . . . 37
Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc.,
455 U.S. 489 (1982).. . . . . . . . . . . . . . . . . . . . . . . 65
Yates v. Evatt,
500 U.S. 391 (1991).. . . . . . . . . . . . . . . . . . . . . . 111
Zafiro v. United States,
506 U.S. 534 (1993).. . . . . . . . . . . . . . . . . 78, 79, 80
Statutes, Rules & Other Authorities
18 U.S.C. § 2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18 U.S.C. § 921. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Page 26
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PAGE
18 U.S.C. § 922(a). . . . . . . . . . . . . . . . . . . . . . 35, 54, 71
18 U.S.C. § 922(o). . . . . . . . . . . . . . . . . . . . . . . . . 54, 56
22 U.S.C. § 2778. . . . . . . . . . . . . . . . . . . . . . . . . passim
26 U.S.C. § 5845(b). . . . . . . . . . . . . . . . . . . . . . . . 36, 56
26 U.S.C. § 5845(f). . . . . . . . . . . . . . . . . . . . . . . 36, 143
22 C.F.R. § 120.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
22 C.F.R. § 120.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
22 C.F.R. § 120.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
22 C.F.R. § 121.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
22 C.F.R. § 127.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
22 C.F.R. § 129.2. . . . . . . . . . . . . . . . 31, 33, 47, 69, 132
22 C.F.R. § 129.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
22 C.F.R. § 129.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
22 C.F.R. § 129.7. . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35
Fed. R. Crim. P. 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Fed. R. Crim. P. 16. . . . . . . . . . . . . . . . . . . . . . . . . . 100
Fed. R. Crim. P. 52(a). . . . . . . . . . . . . . . . . . . . . . . . 110
U.S.S.G. § 1B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . 133, 134
U.S.S.G. § 2X1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 141
U.S.S.G. § 3B1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
U.S.S.G. § 3C1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 151
Page 27
xxv
PAGE
U.S.S.G. § 5G1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Page 28
FOR THE SECOND CIRCUIT
Docket Nos. 08-4211-cr(L), 09-0074-cr(con), 09-0610-cr(con), 09-1493-cr(con),
09-3266-cr(con), 09-3801-cr(con)
UNITED STATES OF AMERICA,
Appellee,
-v.-
NIKOLAI NADIRASHVILI, also known as Nikoloz
Nadirashvili, also known as Nikush, LEVAN CHVELIDZE,
DIMITRIY VOROBEYCHIK, IOSEB KHARABADZE, also
known as Soso and CHRISTIAAN DEWET SPIES, also
known as David, ARTUR SOLOMONYAN, also known as
Alex,
Defendants-Appellants,
JOSEPH COLPANI, also known as Joe, MICHAEL GUY
DEMARE, also known as Michel, ARMEN RAZMIK
BARSEGHYAN,SPARTAK VAHAGN YERIBEKYAN, LEVON
SOLOMONYAN, ALLAH MCQUEEN, RAJAB CHAVIS, also
known as Jabs, also known as Keith Chavis, GAREGIN
GASPARYAN, also known as Garik, MICHAEL JIMENEZ,
also known as Mike, NIEMAN MYLES, also known as
Luis, WILLIAM JESUS THOMAS, VAKHTANG
MACHITIDZE, TIGRAN GEVORGYAN, also known Tiko,
Page 29
2
ARMAND ABRAMIAN, also known as Armo,
Defendants.
BRIEF FOR THE UNITED STATES OF AMERICA
Preliminary Statement
Artur Solomonyan, Christiaan Spies, Ioseb
Kharabadze, Dimitry Vorobeychik, Nikolai Nadirashvili,
and Levan Chvelidze (collectively, the “Appellants”)
appeal from judgments of conviction entered on August
20, 2008 (Nadirashvili), December 29, 2008 (Chvelidze),
February 13, 2009 (Vorobeychik), April 8, 2009
(Kharabadze and Solomonyan), and July 28, 2009 (Spies),
in the United States District Court for the Southern District
of New York, following a five-week trial before the
Honorable Richard J. Holwell, United States District
Judge, and a jury.
Indictment S1 05 Cr. 327 (RJH) (the “Indictment”) was
filed on January 29, 2007, in seven counts. The Indictment
charged the Appellants and others with various weapons
trafficking offenses that may be divided into two catego-
ries.
In the first category, Solomonyan, Spies, and
Kharabadze were charged in Counts One and Two with
military arms trafficking offenses involving a plot to
import rocket-propelled grenades, surface-to-air missiles,
machine guns, and other military arms from Eastern
Page 30
3
Europe to the United States (hereinafter, the “Overseas
Arms Trafficking Offenses”). Count One charged
Solomonyan, Spies, and Kharabadze with violating 18
U.S.C. § 371 by conspiring (a) to engage in the business of
brokering activities with respect to the import and transfer
of foreign defense articles that are on the United States
Munitions List, in violation of 22 U.S.C. § 2778 and (b) to
transport in interstate and foreign commerce a destructive
device and a machine gun, in violation of 18 U.S.C.
§ 922(a)(4). Count Two charged Solomonyan, Spies, and
Kharabadze with engaging in the business of brokering
activities with respect to the import and transfer of foreign
defense articles that are on the United States Munitions
List, in violation of 22 U.S.C. § 2778 and 18 U.S.C. § 2.
In the second category of offenses, Solomonyan, Spies,
Vorobeychik, Nadirashvili, and Chvelidze were charged in
Counts Three through Seven with firearms trafficking
offenses involving the acquisition of firearms, such as
machine guns and semi-automatic assault rifles, that were
already in the United States (hereinafter, the “Domestic
Gun Trafficking Offenses”). Count Three charged
Solomonyan, Spies, Vorobeychik, Nadirashvili, and
Chvelidze with violating 18 U.S.C. § 371 by conspiring (a)
to engage in the business of dealing in firearms without a
license in violation of 18 U.S.C. § 922(a)(1)(A), and (b) to
transfer and possess a machinegun in violation of 18
U.S.C. § 922(o). Count Four charged Solomonyan, Spies,
Vorobeychik, Nadirashvili, and Chvelidze with unlicensed
firearms dealing in violation of 18 U.S.C. §§ 922(a)(1)(A)
and 2. Count Five charged Solomonyan, Spies,
Vorobeychik, Nadirashvili, and Chvelidze with interstate
travel to engage in firearms dealing in violation of 18
Page 31
4
U.S.C. §§ 924(n) and 2. Count Six charged Solomonyan
and Spies with the illegal transfer or possession of a
machinegun in violation of 18 U.S.C. §§ 922(o) and 2.
Count Seven charged Solomonyan and Spies with being
illegal aliens in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(5) and 2.
Trial commenced on June 20, 2007, and ended on July
24, 2007, when Solomonyan was convicted on Counts One
through Seven; Spies was convicted on Counts One
through Seven, Kharabadze was convicted on Counts One
and Two; and Vorobeychik, Nadirashvili, and Chvelidze
were convicted on Counts Three and Four. Prior to
submitting the case to the jury, the Government elected not
to proceed against defendants Vorobeychik and Chvelidze
on Count Five. Nadirashvili was acquitted on Count Five.
On July 17, 2008, Judge Holwell sentenced
Nadirashvili to a term of 41 months’ incarceration, to be
followed by two years’ supervised release, a $5,000 fine,
and a $200 special assessment.
On October 31, 2008, Judge Holwell sentenced
Chvelidze to a term of 34 months’ incarceration, to be
followed by three years’ supervised release, and a $200
special assessment.
On January 30, 2009, Judge Holwell sentenced
Vorobeychik to a term of 33 months’ incarceration, to be
followed by three years’ supervised release, and a $200
special assessment.
On March 6, 2009, Judge Holwell sentenced
Solomonyan to a term of 264 months’ incarceration, to be
followed by three years’ supervised release, and a $700
Page 32
5
special assessment.
On March 11, 2009, Judge Holwell sentenced
Kharabadze to a term of 108 months’(nine years’) incar-
ceration, to be followed by 3 years’ supervised release, and
imposed a $200 mandatory special assessment.
On April 16, 2009, Judge Holwell sentenced Spies to
a term of 240 months’ (20 years’) incarceration, to be
followed by 3 years’ supervised release, and imposed a
$700 mandatory special assessment.
Solomonyan, Spies and Kharabadze are currently
serving their sentences. Vorobeychik, Nadirashvili and
Chvelidze have completed their terms of imprisonment
and are currently on supervised release.
Statement of Facts
A. The Government’s Case
1. Overview of the Two Weapons
Trafficking Schemes
The evidence established that Solomonyan and Spies
— illegal aliens from Armenia and South Africa — and
certain co-conspirators participated in two overlapping
weapons trafficking schemes. The first of these
schemes — the Overseas Arms Trafficking Offenses —
occurred as follows:
From February 2004 to March 2005, Solomonyan and
Spies believed that a man named Kelly Davis was an
illegal arms trafficker who wanted to buy surplus rocket-
propelled grenades (“RPGs”), surface-to-air missiles
(“SAMs”), machine guns, and other weapons from Eastern
Page 33
6
Europe. In fact, Davis was a confidential source working
for Government. Solomonyan and Spies engaged in a
lengthy series of discussions and negotiations with Davis
concerning a proposed deal in which they would obtain
these weapons from overseas and sell them to Davis. The
vast majority of these conversations were recorded either
by the Federal Bureau of Investigation (the “FBI”) pursu-
ant to court-ordered wiretaps, or by Davis at the direction
of the FBI. Through its wiretap investigation, the Govern-
ment also intercepted telephone conversations between
Solomonyan and several individuals whom he contacted
for the purpose of obtaining these weapons.
One of these individuals was Kharabadze, a Georgian
national who lived in Manhattan. Kharabadze agreed to
help Solomonyan obtain RPGs, SAMs, and other weapons
from Eastern Europe. In April 2004, Kharabadze told
Solomonyan by telephone that their efforts to obtain such
weapons were being delayed by Russian military exercises
occurring in the area where the weapons were stored. Two
months later, in June 2004, Kharabadze provided
Solomonyan with a price list of RPGs, SAMs, and other
weapons, so that Solomonyan and Spies could provide
prices to Davis. Solomonyan and Davis, in the presence of
Spies, discussed this list at length over a two-day period in
June 2004.
Solomonyan also asked several other individuals to
help him obtain RPGs, SAMs, and other weapons for
Davis. Solomonyan’s conversations focused on surplus
weapons in Leninakan, a city in Armenia with an active
Russian military base. In February 2005, one of
Solomonyan’s overseas weapons contacts, Spartak
Page 34
7
Yeribekyan, provided photographs of SAMs, anti-tank
missile systems, and other high-powered military weapons
that were for sale. Solomonyan and Spies showed the
photographs to Davis at a meeting in New York in March
2005. After this meeting, Solomonyan and Spies were
arrested.
The second scheme — the Domestic Gun Trafficking
Offenses — arose from and overlapped with the Overseas
Trafficking Offenses. In the course of Davis’s negotiations
with Solomonyan and Spies concerning the RPGs and
SAMs, Davis, at the direction of the FBI, offered to buy
from Solomonyan and Spies machineguns and semi-
automatic rifles that were already located in the United
States. Solomonyan and Spies then enlisted the help of
several individuals, including Nadirashvili, Chvelidze, and
Vorobeychik, to help them obtain illegal guns for Davis.
Solomonyan asked Nadirashvili and Chvelidze to help
him obtain machineguns in September 2004. They agreed
to help. Thereafter, Nadirashvili and Chvelidze each took
affirmative steps to obtain machineguns for him, although
they did not obtain any in the end.
Solomonyan also called Vorobeychik to help him
obtain illegal guns for Davis. Vorobeychik agreed to help
and introduced Solomonyan to another supplier, Allah
McQueen, who ultimately provided three illegal guns to
Solomonyan and Spies. In total, Solomonyan and Spies
sold one machinegun and seven semi-automatic firearms
to Davis. Based on this conduct, Solomonyan, Spies,
Nadirashvili, Chvelidze, and Vorobeychik were charged
with the Domestic Gun Trafficking Offenses.
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2. The Overseas Weapons Trafficking
Offenses
a. Spies and Solomonyan Offer To
Sell Weapons to Davis
The Government’s investigation began in February
2004 when Kelly Davis provided information about Spies
to state and federal law enforcement agents in Texas.
(Tr. 81-83, 87-90, 92). After Davis provided this informa-*
tion, Davis agreed to make a consensually-recorded call to
Spies. (Tr. 98, 108). The first recorded call took place on
February 10, 2004. (Tr. 108-09). On this call, Davis and
Spies resumed a conversation that they previously had
concerning Spies’s efforts to obtain RPGs for Davis.
Specifically, Spies and Davis discussed Spies’s efforts to
obtain, through another person later identified as
Solomonyan, “Russian made” RPGs from overseas.
(SA 135-36). Two days later, Davis asked Spies to set up
a meeting with Solomonyan, and Spies agreed. (SA 141).
Davis met with Solomonyan and Spies twice in March
2004: once at a restaurant in midtown Manhattan (Tr. 117,
239), and a second time at a spa in Brooklyn. (Tr. 121,
239). Neither of these meetings was recorded.
In April 2004 and thereafter, the FBI obtained court
authorization to wiretap the cellular telephones of Spies
“Tr.” refers to the trial transcript; “GX” refers*
to a Government Exhibit offered in evidence; “[Name]
Br.” and “[Name] A.” refers to the named defendant’s
brief on appeal and appendix; “SA” refers to the supple-
mental appendix filed with this brief.
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9
and Solomonyan. (Tr. 239-40). Over the next several
months, the FBI recorded dozens of calls between and
among Davis, Solomonyan, Spies, and others concerning
a proposed deal in which Solomonyan and Spies would
acquire surplus RPGs, SAMs, and other military-grade
weapons from military bases in Eastern Europe and sell
the weapons to Davis. These recorded calls established
that Solomonyan contacted several individuals in the
United States and overseas to help him obtain such
weapons, so that he and Spies could sell them to Davis.
b. Kharabadze’s Efforts To Obtain
Arms Overseas
Kharabadze was one of the individuals Solomonyan
contacted. Solomonyan asked Kharabadze to help him
obtain RPGs, SAMs, and other weapons, and Kharabadze
agreed. On April 23, 2004, Kharabadze advised
Solomonyan by telephone that their efforts to obtain such
weapons were being delayed by Russian military exercises
occurring in the area where the weapons were being
stored. Specifically, Kharabadze advised Solomonyan that
their efforts to obtain arms “has been temporarily put on
hold” because “the Russian side” was “closing the bor-
ders” and “clearing minefields in those parts.” (Tr. 252).
Kharabadze attributed the problem to “the peacekeeping
Kantemirovskaya Division” and noted that “there’s no
making a deal with them”; in other words, these particular
Russian troops could not be bribed to obtain the weapons.
(Tr. 253). Shortly thereafter, Solomonyan reported
Kharabadze’s news of the “obstacles” to Spies, and Spies
told Davis. (Kharabadze A. 115-17). Solomonyan never-
theless remained optimistic that Kharabadze or one of his
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other possible suppliers would eventually deliver the
weapons: On April 28, 2004, Solomonyan told Spies that
Kharabadze and the other possible suppliers were “very
serious” people with whom Solomonyan had previously
done “business” that “went perfect.” (SA 148-49).
Solomonyan and Spies continued to negotiate with
Davis concerning an arms deal at a face-to-face meeting in
Texas on May 12, 2004. (Tr. 887-92; Kharabadze A. 127-
58). At this meeting, Solomonyan and Spies addressed
several aspects of the proposed deal, including the prices
and quantities of particular weapons, methods of packing
and shipping, shipping routes, and the timing of a deal.
(Kharabadze A. 130-58). Notably, Solomonyan advised
Davis that he was having difficulty communicating with
Kharabadze because Kharabadze would not “speak over
the phone much,” even in “coded” language, because
Kharabadze was using his “house phone.” (Kharabadze A.
152).
c. Kharabadze’s Overseas Arms
Price List
After the Texas meeting, the negotiations took a
significant step forward when Solomonyan sought and
obtained from Kharabadze a price list of RPGs, SAMs,
and other weapons that were available in Eastern Europe
to show to Davis. On June 8, 2004, Solomonyan specifi-
cally asked Kharabadze to create a “price list” of the items
they had discussed in person during a previous meeting.
(Tr. 901). Kharabadze agreed to provide a list of “approxi-
mate” prices, and he referred to prices on “Russian bases.”
(Tr. 901). Solomonyan told Kharabadze the purpose of the
price list was to show his customer, Davis, “at least
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something real.” (Tr. 901-02). Kharabadze agreed to, and
did, provide the price list to Solomonyan. (Tr. 905-06).
The following day, law enforcement agents saw
Solomonyan enter Kharabadze’s apartment building on the
Upper West Side of Manhattan and leave about an hour
later. (Tr. 1084).
d. The June 2004 Meetings
Having obtained Kharabadze’s price list, Solomonyan
traveled to a hotel in Manhattan for the first of two days of
discussions with Spies and Davis concerning the proposed
arms deal. On both days — June 9 and June 11, 2004 —
the meetings were recorded on video and audio. (Tr. 254-
57).
At the June 9 meeting, Solomonyan wrote
Kharabadze’s price list from memory on a piece of paper.
(Tr. 907, 915-16). Solomonyan handed the paper to Davis
and asked Davis to memorize it. (Kharabadze A. 207-08,
211-12, 161-63, 181-82). Davis nevertheless made his own
handwritten document from Solomonyan’s writing.*
(Tr. 915-16, 923-929). During this meeting, in the pres-
ence of Spies, Solomonyan and Davis discussed, among
other things, the types of weapons on the list, the range
Davis’s writing (GX 17) was not admitted into*
evidence at trial (Tr. 948-49), but was submitted to the
District Court for the sentencings of Solomonyan, Spies,
and Kharabadze. Davis’s writing included the words “AK-
47"; “Flyer,” shorthand for RPGs; “Stinger,” referring to
Stinger SAMs, “Ground to ground,” and “Rockets.”
(SA 121).
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12
and firepower of the weapons, the logistics of shipping
and delivery, and the dimensions of the containers that
would be used to ship the weapons. Solomonyan agreed to
provide exact dimensions to Davis. (Kharabadze A. 162-
216). Near the end of the June 9 meeting, Solomonyan
raised the possibility that Davis could obtain a “green
card” for Solomonyan, who had overstayed his visa.
(Kharabadze A. 213-26).
Solomonyan and Davis continued their negotiations on
June 11 in the same hotel room, again in the presence of
Spies. For example, Solomonyan and Davis discussed in
detail the price that Solomonyan had quoted for Stinger
shoulder-fired SAMs. In addition, Solomonyan sketched
the dimensions of the shipping crates that would be used
to transport RPGs, “Stinger[s]” and “mines,” among other
weapons. (SA 122; Kharabadze A. 218). During this
meeting, Davis ordered from Solomonyan and Spies 100
RPG launchers and 100 machineguns, among other things.
(Kharabadze A. 223-24). Solomonyan also offered to sell
uranium to Davis, which Solomonyan said could be used
in “[t]rain stations,” referring to the use of uranium as a
weapon of mass destruction. (Kharabadze A. 225). With
respect to the timing of the deal, Solomonyan explained
that his ability to acquire the weapons was being delayed
by political unrest near the border of Russia and Georgia.
(Kharabadze A. 233-34).*
An Government expert witness, Alexander*
Melikishvili, testified that, in the summer of 2004, this
border region, South Ossetia, experienced a “flare-up in
military activities.” (Tr. 1154-56).
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13
e. Surplus Weapons in Armenia
Having received Davis’s initial order on June 11, 2004,
in the days and months thereafter, Solomonyan spoke by
telephone with two individuals concerning a specific plan
to obtain surplus weapons from Leninakan (Tr. 380-81), a
city in Armenia with an active Russian military base that
housed 4,000 Russian soldiers. (Tr. 1152-54). Specifically,
on June 25, 2004, Solomonyan called a man named Artur
Barseghyan to discuss weapons that were available in
Leninakan, where military exercises were then taking
place. (Tr. 265). Solomonyan told Barseghyan that he had
learned from a “Georgian” that “[e]verything that Georgia
owned was being dumped” in Leninakan and that the arms
were “being written off” and “actively taken out of there.”
(Tr. 265-66). Solomonyan further stated, “If need be, their
man will go there . . . he’ll stay there with them until
everything is taken care of.” (Tr. 266). Several months
later, on December 27, 2004, Solomonyan spoke by
telephone with another man, Armen Baregamyan, who
was in Karabakh, a mountainous region in Azerbaijan.
(Tr. 376, 1159). Solomonyan requested Baregamyan’s
help in obtaining “merchandise,” meaning weapons, from
Leninakan. (Tr. 380-81). Solomonyan explained to
Baregamyan that the weapons would be shipped from
Leninakan to the Republic of Georgia and then to the
United States by ship. (Tr. 381-82).
f. The January 2005 Meeting
A constant theme throughout Davis’s discussions with
Solomonyan and Spies concerning the RPG and SAM deal
was the slow pace of developments toward obtaining the
RPGs and SAMs. One source of frustration for
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14
Solomonyan was his inability to arrange a meeting be-
tween Davis and Kharabadze. On January 7, 2005,
Solomonyan reported to Davis that Kharabadze was
prepared to have such a meeting. (Kharabadze A. 260;
Tr. 1057). However, the meeting never occurred because
Solomonyan had trouble reaching Kharabadze
(Kharabadze A. 268-69), and because Kharabadze’s wife
interfered. (Kharabadze A. 336).
To speed up the negotiations, on January 26, 2005,
Davis, acting at the direction of the FBI, met with
Solomonyan and Spies and gave them a two-week dead-
line within which to complete a deal for “shoulder fired
missiles” and “rockets.” (Kharabadze A. 280-81; Tr. 383).
Solomonyan assured Davis that they were all proceeding
“according to the plan” and that “first” deal was “the most
important and hardest[.]” (Kharabadze A. 278-80).
Solomonyan told Davis, “I’m working my ass off to get
you some things.” (Kharabadze A. 284). Also during this
meeting, Davis showed to Solomonyan and Spies the
green cards that he had obtained for them, but told them
that they could not have the cards until more progress was
made toward a deal. (Kharabadze A. 281-82; Tr. 387,
389).
g. Photographs of the Overseas
Weapons
Shortly after this meeting, Solomonyan achieved a
breakthrough in his efforts to obtain weapons. On January
28, 2005, he spoke by telephone with a man named
Spartak Yeribekyan located in or around Armenia to enlist
his help in obtaining weapons. (Tr. 383-404). Solomonyan
told Yeribekian that Davis wanted to spend $2 million on
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15
arms (Tr. 397) and that the proposed deal with Davis was
“quite serious.” (Tr. 399). For the proposed deal,*
Solomonyan told Yeribekyan, Solomonyan wanted to
obtain surplus weapons that were being moved “to the area
around Leninakan,” where “[a] lot of overstock goes out
unaccounted for under the pretense of [military] exer-
cises.” (Tr. 395-96). In particular, Solomonyan advised,
the deal would involve “those buckets that you put on your
shoulders,” referring to RPGs, and advised that Davis
wanted 200 of them. (Tr. 402-03). Solomonyan asked
Yeribekyan to “get closer” to a particular Russian individ-
ual who had access to the weapons, or to identify a soldier
with “[a]ny rank, a fake one, as long as he has access to
the warehouse” where the RPGs were stored. (Tr. 403).
Several days later, on February 2, 2005, Solomonyan
and Yeribekyan spoke again to discuss arrangements for
Solomonyan also told Yeribekyan that Davis had*
obtained a green card for Solomonyan but had refused to
give it to him unless there was progress on the arms deal.
(Tr. 387-89). Solomonyan and Yeribekian agreed that
Davis had considerable leverage on Solomonyan because
Davis could use the same information that he had used to
obtain the green card — Solomonyan’s fingerprints and
other identifying information — to “twist your [immigra-
tion] papers to reduce you to a complete zero” and cause
Solomonyan to be arrested. (Tr. 389-91). Referring to the
pressure that Davis was applying to complete the deal,
Solomonyan said, “He’s probably bluffing. I’ll wait and
bluff him too. Let’s see how long this game goes on. I’ve
been playing it for the past year.” (Tr. 391).
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16
Solomonyan to send a digital camera to Yeribekyan in
Armenia, so that pictures of the available weapons could
be taken. (Tr. 404-06; Kharabadze A. 342-43). Over the
next several weeks, Solomonyan told Davis the photo-
graphs were forthcoming, and that Solomonyan would
deliver them through an e-mail account. (Tr. 408; SA 244-
46, 249-51). Solomonyan provided the password and other
information concerning this account by fax on February
25, 2005. (SA 253-54). The FBI obtained this information,
accessed the e-mail account, and printed the photographs.
(Tr. 416-19, 1090, 1116-17).
The photographs depicted weapons systems that were
identified at trial by Richard Stryker, a FBI special agent
bomb technician and an expert in explosive devices
(Tr. 1125-27), as a mortar launcher (Tr. 1130); a recoilless
artillery and anti-tank gun (Tr. 1132-33); a shoulder-fired
heat-seeking anti-aircraft missile system (Tr. 1133-35);
and an anti-tank guided missile launcher and wire-guided
missile (Tr. 1137-38). These weapons systems were on the
United States Munitions List in 2004 and 2005. (Tr. 1201-
03). Solomonyan, Spies, and Kharabadze never applied
for, or received, registrations or licenses from the Depart-
ment of State to broker transactions in such weapons.
(Tr. 1205-06).
h. The March 2005 Meeting
Solomonyan discussed these photographs in detail with
Davis at their final meeting, on March 14, 2005, at a hotel
room in Manhattan that was wired to record audio and
video. (Tr. 420-22; SA 123-34). Solomonyan told Davis
that the photographs had been taken by a camera that
Solomonyan had sent to a friend overseas — a reference
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17
to Yeribekyan. (Kharabadze A. 342-43). In the presence of
Spies, Solomonyan showed the photographs to Davis and
made handwritten notes on many of them, indicating the
quantities that he would be able to provide. On one
photograph, Solomonyan wrote “Armenia ÿ Georgia” to
indicate the route that would be used to ship the weapons.
(Tr. 420-22; Kharabadze A. 327-335, 338-42, 344-50; SA
134). During the meeting, Davis gave to Solomonyan and
Spies the green cards that he had previously shown them.
(Tr. 422). After the meeting ended, the FBI arrested
Solomonyan and Spies. (Tr. 435).
3. The Domestic Gun Trafficking
Offenses
Several months after Solomonyan and Spies began
negotiating with Davis to sell him RPGs and SAMs from
overseas, Davis, at the direction of the FBI, asked
Solomonyan and Spies if they could also sell him
machineguns and semi-automatic rifles that were already
located in the United States. Solomonyan and Spies agreed
to do so, and they enlisted the help of several
individuals — including Nadirashvili, Chvelidze, and
Vorobeychik. Solomonyan recruited Nadirashvili and
Chvelidze to help him obtain five machineguns for Davis
in September 2004. Nadirashvili and Chvelidze each spoke
several times with Solomonyan concerning their efforts to
obtain these weapons, but in the end they did not obtain
any for him. Also in September 2004, Solomonyan called
Vorobeychik to help him obtain guns. Vorobeychik
introduced Solomonyan to a man named Allah McQueen,
who provided several guns to Solomonyan and Spies. In
total, through this scheme, Solomonyan and Spies deliv-
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18
ered to Davis eight firearms, including one machinegun.
a. Nadirashvili and Chvelidze Agree
To Help Solomonyan Obtain
Machineguns
As early as July 17, 2004, Solomonyan and Spies used
coded language to discuss their efforts to obtain new and
used machineguns to sell to Davis. (SA 157-62). These
efforts began in earnest on September 11, 2004, when
Davis, acting at the direction of the FBI, met with
Solomonyan in Manhattan and gave him money to buy
guns. (Tr. 289). Following the meeting, Solomonyan
enlisted the help of Nadirashvili, Chvelidze, and
Vorobeychik, among others, to obtain these weapons.
Specifically, on September 11, 2004, Solomonyan
called Nadirashvili and explained that “a friend” — a
reference to Davis — had given Solomonyan money
earlier that day to buy five machineguns. (Tr. 290-92).
Solomonyan asked Nadirashvili to help him find a supplier
for the guns, which Solomonyan described in code as
“cars” with “automatic transmissions.” (Tr. 291).
Nadirashvili understood Solomonyan’s code almost
immediately. (Tr. 291). Solomonyan suggested that
Nadirashvili call “Levan” Chvelidze to see if “[u]p to five
pieces” could be obtained that night. (Tr. 291, 294).
Nadirashvili agreed and said that Chvelidze has “good
contacts,” but Nadirashvili did not believe that the weap-
ons could be obtained that night. (Tr. 293-94).
Immediately thereafter, Nadirashvili called Levan
Chvelidze and used the same code words — “cars” with
“automatic transmissions” — to enlist Chvelidze’s assis-
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19
tance. (Tr. 294-95). Whereas Nadirashvili had understood
Solomonyan’s use of the code almost immediately, it took
Chvelidze approximately 30 seconds to understand that
Nadirashvili was talking about guns. (Tr. 295-97, 1470).
Once he understood the code, Chvelidze agreed to call a
particular supplier right away, but he warned that he was
not sure if the supplier had “automatic” firearms, and that,
in any event, the guns could not be obtained that day.
(Tr. 297). Chvelidze further stated, “Tell me if you want
to place an order or something.” (Tr. 298).
A few minutes later, Nadirashvili called Solomonyan
(Tr. 298), reported Chvelidze’s advice that guns could not
be obtained that day (Tr. 299), and gave Chvelidze’s
telephone number to Solomonyan. (Tr. 303-04).
Solomonyan called Chvelidze several minutes later.
Chvelidze told Solomonyan that he would need “a
couple of days” to get the “cars,” meaning firearms.
(Tr. 305). Solomonyan clarified that he needed “auto-
matic” firearms, and Chvelidze agreed to ask his supplier
for this kind in particular. (Tr. 306). Over the next several
days, Nadirashvili and Chvelidze had several additional
conversations with Solomonyan detailing their efforts to
locate firearms for him. (Tr. 307-09, 313-16, 325-27,
1503-04; SA 164-65). In one conversation, on September
12, 2004, Nadirashvili assured Solomonyan, “I’m gonna
walk around Brighton [Beach.] I have a couple of people
there and we’ll see if there’s anything there, okay?”
(Tr. 308; see also Tr. 1496-97). Chvelidze, for his part,
assured Solomonyan that he would “keep looking . . . to
find out something” and would “try hard” (SA 165).
Ultimately, neither Nadirashvili nor Chvelidze obtained
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20
guns for Solomonyan.
b. Vorobeychik Introduces
Solomonyan to a Dealer To Obtain
Guns
Around the same time (mid-September 2004),
Solomonyan was more successful in obtaining guns from
another source: Vorobeychik. Vorobeychik introduced
Solomonyan to a man named Allah McQueen for the
purpose of obtaining guns. (Tr. 319-20, 323).
Specifically, on September 12, 2004, at 11:41 p.m.
(Tr. 319), Vorobeychik called Solomonyan (Tr. 323), gave
McQueen’s telephone number to Solomonyan, and told
Solomonyan, “I’ll just call him [McQueen] so that he
understands who’s who and what’s what.” (Tr. 319-20,
323). Immediately thereafter, Vorobeychik called
McQueen. (Tr. 321-23). A few minutes later, at 11:46 p.m.
(Tr. 324), Vorobeychik called Solomonyan again and
confirmed that he “talked to him [McQueen]. I told him,
‘Artur will call you. Don’t be afraid of what he’s gonna
talk to you about.’” (Tr. 324).
One minute later, at 11:47 p.m. on September 12, 2004
(Tr. 324), Solomonyan called McQueen and told him that
he needed a “few big trucks with fully automatic transmis-
sion.” (SA 167). McQueen initially did not understand
Solomonyan’s code, and asked, “[Y]ou are talking about
trucks, right? . . . . I don’t know if you are talking about
subliminally something else or you are talking about
vehicles to drive.” (SA 168). Solomonyan replied, “Listen,
of course I am not talking about vehicles.” (SA 168).
McQueen then acknowledged that he understood what
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21
Solomonyan was talking about. (SA 168).
One September 19 and 22, 2004, Solomonyan and
McQueen spoke by telephone, using code, about
Solomonyan’s desire to obtain guns. (Solomonyan A. 330-
35, 337-44). On September 19, 2004, Solomonyan and
McQueen agreed in principle to trade handguns for rifles.
(Solomonyan A. 330, 333). A few days later, on Septem-
ber 22, 2004, McQueen and Solomonyan discussed a trade
of two handguns in exchange for an “AK” rifle, and a
trade of two handguns in exchange for an “Israeli” Uzi.
(Solomonyan A. 337-40).
On September 30, 2004, Vorobeychik spoke by
telephone with Solomonyan to follow up on Solomonyan’s
dealings with McQueen. Vorobeychik asked Solomonyan,
“Can they really get it?” and Solomonyan responded,
“Well, I only need two pieces[.]” (Tr. 336-38) (emphasis
added). In a statement to law enforcement agents after he
was charged in this case, Vorobeychik admitted that the
word “they” in this passage referred to Allah McQueen;
Vorobeychik refused to answer what he meant by using
the word “it.” (Tr. 341). On this call, Solomonyan further
advised Vorobeychik that he gave “a few pieces” to
McQueen in a trade. (Tr. 338-39).
On October 8, 2004, Vorobeychik and Solomonyan
spoke again about McQueen and his ability to provide
guns, and they agreed to propose an ongoing arrangement
with “Allah” in which Solomonyan would buy guns
directly from McQueen. (Tr. 361-63). Vorobeychik stated,
We have to build the empire again,
Artur. . . . I once had a good empire. . . . But
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22
this one will provide permanent income. I
already know it, large income. . . . [I]f you
have a good turnover in three, four months,
your income — Let’s take me for example,
I never made less than 30.
(Tr. 362-63). Vorobeychik and Solomonyan further agreed
that Vorobeychik would “discuss finances” with
McQueen. (Tr. 363). Vorobeychik said, “Yeah, he’ll get
25 percent from us, and it will be fucking great for him.”
(Tr. 363).
Solomonyan and Spies ultimately obtained three
firearms from McQueen. They bought the first two in
October 2004: a Norinco NHM 91 Long Gun and an
Israeli-made Uzi Pistol, which Spies deposited on October
2, 2004 in a mini-storage locker location in Manhattan
using a passcard and locker key that Davis had provided to
him. (Tr. 287, 344, 350-53; SA 180-81, 185-86, 188-93).*
Solomonyan and Spies purchased the third gun from
McQueen — a “TEC 9" Interdynamic KG-9 9mm semi-
automatic pistol — in Brooklyn on November 4, 2004.
(Tr. 287, 364, 367-71; GX 195-97).
c. Additional Firearms
From September through December, 2004,
Solomonyan and Spies purchased five additional firearms
for Davis in California and Florida. (Tr. 287). Solomonyan
obtained an automatic SKS machinegun in California in
September 2004 (Tr. 287, 513, 1262-68, 1329-32; SA
Spies was carrying this locker key at the time of his*
arrest. (Tr. 443-44).
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23
176), and two semi-automatic rifles in November 2004.
(Tr. 287; SA 198-200, 201-10). In Florida, Spies asked a
man named Joseph Colpani to provide machineguns.
(SA 213-14, 216). Ultimately, Colpani obtained for Spies
two semi-automatic assault rifles, but no machinegun.
(Tr. 287, 837-49; SA 211-12, 222).
Solomonyan, Spies, Vorobeychik, Nadirashvili, and
Chvelidze were not licensed firearms dealers, and that
none of them had registered any machineguns or destruc-
tive devices. (Tr. 1300-09).
Solomonyan and Spies were illegal aliens as of No-
vember 2004. (Tr. 1208-14).
4. Solomonyan’s Post-Arrest Statement
Following his arrest on March 12, 2005, Solomonyan
stated to law enforcement agents, among other things, (1)
that he did not know what kind of items Davis wanted him
to purchase, and that it could have been weapons, but he
was not certain; (2) that he never made any calls overseas
to discuss obtaining weapons; and (3) that he purchased
semi-automatic guns in California because he wanted them
for protection, but he threw them out in the middle of the
street because it was too risky to have them. (Tr. 438-39).
B. The Defense Case
Kharabadze called two character witnesses in his
defense case. Vepkhia Jmukhadze testified that he com-
peted with Kharabadze in powerlifting in the Republic of
Georgia and in the United States. (Tr. 1539-43, 1545-46).
Boriz Saralitze testified that he was also a powerlifting
acquaintance of Kharabadze. (Tr. 1549-53). Both wit-
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24
nesses testified that Kharabadze had an excellent reputa-
tion in the community for trust, integrity and honesty.
Kharabadze also offered a picture depicting him with
Jmukhadze at a 2004 world championship powerlifting
event in Atlantic City, New Jersey. (Tr. 1545).
Nadirashvili testified in his defense at trial.
Nadirashvili described his background and the nature of
his relationship with Solomonyan. (Tr. 1411-22).
Nadirashvili then explained how he became involved in
Solomonyan’s efforts to obtain firearms for Davis.
(Tr. 1432-34). Nadirashvili stated that, although he had
conversations with Solomonyan and Chvelidze about
firearms, Nadirashvili “didn’t want this deal to happen,”
did not believe Chvelidze could possibly obtain firearms,
and was lying to Solomonyan when he agreed to search for
weapons. (Tr. 1437-43).
In his defense case, Vorobeychik offered a certificate
of naturalization stating that he became a U.S. citizen on
March 5, 2004. (Tr. 1554-55).
Chvelidze called an expert in the translation of Geor-
gian and Russian to English. (Tr. 1594-96). The expert’s
testimony focused on three of the Government’s transla-
tions of foreign language telephone calls. The expert
testified that while the three translations were generally
accurate, there were “a few faults” in them, which she then
identified for the jury. Chvelidze offered competing
translations for these three calls. (Tr. 1598-1606).
Chvelidze also offered certain “line sheets” (summaries of
intercepted telephone calls) indicating that telephone calls
were made by Solomonyan to Chvelidze in September
2004. (Tr. 743-45, 747).
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25
A R G U M E N T
POINT I
The Evidence Was Sufficient to Support the
Jury’s Verdicts on the Overseas Arms
Trafficking Offenses
Kharabadze contends that there was insufficient
evidence to support his convictions on Counts One and
Two — the Overseas Arms Trafficking Offenses. Specifi-
cally, Kharabadze contends that there was insufficient
evidence of the following: (1) that Kharabadze willfully
violated United States law in that he knew it was against
the law to broker an arms deal or transport a machinegun
or destructive device (Kharabadze Br. 40, 47); (2) that the
weapons in question were on the United States Munitions
List (Kharabadze Br. 39, 47) or were a “machinegun” or
“destructive device” (Kharabadze Br. 53); (3) that
Kharabadze himself negotiated prices or transfers of such
weapons, or had a financial stake in the deal (Kharabadze
Br. 39, 46); (4) that Kharabadze played any role in the
weapons brokering scheme after June 9, 2004 (Kharabadze
Br. 43); (5) that Kharabadze spoke to any overseas any
arms dealers overseas about a weapons deal (Kharabadze
Br. 42, 44-45); (6) or that Kharabadze knew that
Solomonyan was not licensed to deal in firearms.
(Kharabadze Br. 53).
Each of these arguments fails. There was ample
evidence that Kharabadze, Solomonyan, and Spies partici-
pated in the conspiracy charged in Count One, that
Kharabadze aided and abetted Solomonyan and Spies in
committing the substantive brokering offense charged in
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26
Count Two, and that Kharabadze was liable on Count Two
under Pinkerton v. United States, 328 U.S. 640 (1946). For
example, Kharabadze told Solomonyan on April 23, 2004,
that his efforts to acquire arms overseas were being
delayed because of the activities of a particular unit of
Russian troops. In June 2004, Kharabadze gave
Solomonyan a price list of arms from Eastern Europe that
were available for sale, including RPGs, SAMs, and
machineguns. As Judge Holwell found at sentencing with
respect to the events of June 2004:
The most persuasive interpretation of that
series of events that was laid before the jury
was that at this point in time [June 9, 2004],
Mr. Kharabadze had knowingly and inten-
tionally decided to assist Mr. Solomonyan
and Mr. Spies in a conspiracy to acquire,
transport, and possess military weapons.
Indeed, I am not sure there is any other
interpretation of the facts that are in evi-
dence.
(Kharabadze A. 652). Accordingly, Kharabadze’s chal-
lenge to the sufficiency of the evidence on Counts One and
Two should be rejected.
A. Applicable Law
1. Sufficiency of the Evidence
A defendant challenging the sufficiency of the evi-
dence bears a “heavy burden.” See United States v.
Gaskin, 364 F.3d 438, 459 (2d Cir. 2004). A reviewing
court must review the evidence “in the light most favor-
able to the government,” drawing all reasonable inferences
Page 54
27
in its favor. Id. The Court must analyze the pieces of
evidence “not in isolation but in conjunction,” United
States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994), and
must apply the sufficiency test “to the totality of the
government’s case and not to each element, as each fact
may gain color from others.” United States v. Guadagna,
183 F.3d 122, 130 (2d Cir. 1999). “[T]o avoid usurping
the role of the jury,” United States v. Autuori, 212 F.3d
105, 114 (2d Cir. 2000), the court must “resolve all issues
of credibility in favor of the jury’s verdict.” United States
v. Desena, 287 F.3d 170, 177 (2d Cir. 2002).
A jury’s verdict may be based entirely on circumstan-
tial evidence. United States v. D’Amato, 39 F.3d 1249,
1256 (2d Cir. 1994). More particularly, a defendant’s
knowledge of a conspiracy and his participation in it with
criminal intent may be established through circumstantial
evidence. United States v. Gordon, 987 F.2d 902, 906-07
(2d Cir. 1993).
In a case where “‘either of the two results, a reasonable
doubt or no reasonable doubt, is fairly possible, the court
must let the jury decide the matter.’” United States v.
Autuori, 212 F.3d at 114 (quoting United States v.
Guadagna, 183 F.3d at 129) (internal quotation marks and
brackets omitted). That is because “the task of choosing
among competing, permissible inferences is for the [jury],
not for the reviewing court.” United States v. McDermott,
245 F.3d 133, 137 (2d Cir. 2001); United States v.
Plitman, 194 F.3d 59, 67 (2d Cir. 1999) (“Even if there
had been evidence regarding these [defense] theories in
the record, the jury was free to reject it”). This approach
“gives full play to the responsibility of the trier of fact
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28
fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307,
319 (1979).
With respect to conspiracy convictions, the deference
accorded the verdict is “especially important because a
conspiracy, by its very nature is a secretive operation, and
it is a rare case where all aspects of a conspiracy can be
laid bare in court with the precision of a surgeon’s scal-
pel.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir.
2003) (internal quotation marks and citations omitted).
Moreover, “[a] conspiracy need not be shown by proof of
an explicit agreement but can be established by showing
that the parties have a tacit understanding to carry out the
prohibited conduct.” United States v. Samaria, 239 F.3d
228, 234 (2d Cir. 2001) (citations and quotations omitted).
The evidence of the defendant’s involvement in the
conspiracy can be direct or circumstantial. United States v.
Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir. 1991). To be a
“convicted member of a conspiracy, a defendant need not
know every objective of the conspiracy,” every “detail”
about the conspiracy, or “the identity of every co-conspira-
tor.” United States v. Gleason, 616 F.2d 2, 16 (2d Cir.
1979); United States v. Martino, 759 F.2d 998, 1003-04
(2d Cir. 1985).
It is also established law that the “the government
need[s] only to prove agreement on one of the objectives
charged in the indictment in order to establish that a
conspiracy exist[s].” United States v. Berger, 224 F.3d
107, 113 (2d Cir. 2000) (citing United States v. Papadakis,
510 F.2d 287, 297 (2d Cir. 1975)); see also United States
Page 56
29
v. Bilzerian, 926 F.2d 1285, 1302 (2d Cir. 1991) (“A
conspiracy conviction based on a multi-object conspiracy
may be upheld so long as evidence is sufficient with
respect to at least one of the criminal objectives.”); United
States v. Frank, 520 F.2d 1287, 1293 (2d Cir. 1975)
(where indictment charged conspiracy to commit securities
fraud and mail fraud, “[e]vidence of accomplishment of
one of the objectives of a conspiracy is enough to support
the conspiracy conviction.”).
Although a defendant’s mere presence at the scene of
a crime is insufficient to prove membership in a conspir-
acy, his presence, together with evidence of other circum-
stances permitting an inference that he “knew about the
enterprise and intended to participate in it or to make it
succeed” will support a finding of his membership in the
conspiracy. United States v. Cirillo, 499 F.2d 872, 883 (2d
Cir. 1974); see also United States v. Johnson, 513 F.2d
819, 823 (2d Cir. 1975); United States v. Gordils, 982
F.2d 64, 71-72 (2d Cir. 1992); United States v. Soto, 959
F.2d 1181, 1185 (2d Cir. 1992). Indeed, a defendant’s
knowing and willing participation in a conspiracy may be
inferred from his presence at critical stages of a conspiracy
that cannot be explained by happenstance. See United
States v. Pedroza, 750 F.2d 187, 199 (2d Cir. 1984).
2. Engaging in the Business of
Brokering Activities
a. The Statute and Regulations
Title 22, United States Code, Section 2778, makes it an
offense to engage in the business of brokering activities
with respect to the import or transfer of certain weapons
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30
and explosives without a license. The statute provides, in
relevant part:
[E]very person . . . who engages in the
business of brokering activities with respect
to the . . . import, or transfer of any defense
article . . . [listed on the United States Muni-
tions List], or in the business of brokering
activities with respect to the . . . import, or
transfer of any foreign defense article . . .,
shall register with the United States Govern-
ment agency charged with the administra-
tion of this section, and shall pay a registra-
tion fee which shall be prescribed by such
regulations.
22 U.S.C. § 2778(b)(1)(A)(ii)(I). The statute further
provides:
No person may engage in the business of
brokering activities described [above] with-
out a license, issued in accordance with this
chapter. . . .
22 U.S.C. § 2778(b)(1)(A)(ii)(III).
Section 2778 criminalizes the violation of the licensing
and registration requirements of the statute and the
accompanying federal regulations. Specifically, subsection
(c) of the statute provides, in relevant part:
Any person who willfully violates any pro-
vision of this [statute], or any rule or regula-
tion issued under [this statute] . . .
shall be guilty of a crime. 22 U.S.C. § 2278(c).
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31
The federal regulations promulgated under Section
2778 further define the relevant terms. The regulations
state in relevant part:
No person may willfully cause, or aid, abet,
counsel, demand, induce, procure or permit
the commission of any act prohibited by, or
the omission of any act required by 22
U.S.C. § 2778 . . . or any regulation, license,
approval, or order issued thereunder.
22 C.F.R. § 127.1(d).
b. Brokering Activities
The implementing regulations also define the term
“brokering activities” and “broker.”
The regulations define “brokering activities” to mean
“acting as a broker as defined in § 129.2(a)” and “includes
the financing, transportation, freight forwarding, or taking
of any other action that facilitates the manufacture, export,
or import of a defense article or defense service, irrespec-
tive of its origin.” 22 C.F.R. § 129.2(b).
The regulations define “broker” to mean “any person
who acts as an agent for others in negotiating or arranging
contracts, purchases, sales or transfers of defense articles
or defense services in return for a fee, commission, or
other consideration.” 22 C.F.R. § 129.2(a).
c. Foreign Defense Articles: The
United States Munitions List
The implementing regulations define “defense article”
to mean “any item or technical data designated in [22
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32
C.F.R.] § 121.1.” 22 C.F.R. § 120.6. Section 121.1 is the
United States Munitions List. The following weapons are
designated as defense articles in Category IV of the
Munitions List, entitled: “Launch Vehicles, Guided
Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs
and Mines”:
(a) Rockets (including but not limited to
meteorological and other sounding rockets),
bombs, grenades, torpedoes, depth charges,
land and naval mines, as well as launchers
for such defense articles, and demolition
blocks and blasting caps.
(b) Launch vehicles and missile and anti-
missile systems including but not limited to
guided, tactical and strategic missiles,
launchers, and systems.
(c) Apparatus, devices, and materials for the
handling, control, activation, monitoring,
detection, protection, discharge, or detona-
tion of the articles in paragraphs (a) and (b)
of this category.
* * *
(g) Non/nuclear warheads for rockets and
guided missiles.
22 C.F.R. § 121.1 (CATEGORY IV).
The defense articles listed in paragraphs (a), (b), and
(g) above are further designated by Section 121.1 as
“significant military equipment” (“SME”). 22 C.F.R.
§ 121.1(b).
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33
The term “foreign defense article” includes any
“non-United States defense article . . . of a nature de-
scribed on the United States Munitions List regardless of
whether such article . . . is of United States origin or
whether such article contains United States origin compo-
nents.” 22 U.S.C. § 2778(b)(1)(A)(ii)(IV); 22 C.F.R.
§ 129.2(c).
d. Registration and Licensing
Requirements
The implementing regulations set forth the registration
and licensing requirements for brokers of defense articles.
The regulations state, in relevant part:
Any U.S. person, wherever located, and any
foreign person located in the United States
or otherwise subject to the jurisdiction of
the United States . . . who engages in the
business of brokering activities . . . with
respect to the . . . import, or transfer of any
defense article . . . subject to the controls of
this subchapter . . . or any foreign defense
article . . . is required to register with the
Office of Defense Controls.
22 C.F.R. § 129.3(a). *
The Office of Defense Trade Controls is the office*
within the State Department which regulates the importa-
tion and exportation of defense articles. See generally 22
C.F.R. §§ 120.1, 129.7. The Office of Defense Trade
Controls is now named “the Directorate of Defense Trade
Controls.” Citations herein are to the Code of Federal
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34
The regulations further provide that individuals may
not engage in the business of brokering activities without
written approval:
No person may engage in the business of
brokering activities without the prior written
approval (license) of, or prior notification
to, the Office of Defense Trade
Controls . . . .
22 C.F.R. § 129.6(a).
A “license” is a “document bearing the word ‘license’
issued by the Director of the Office of Defense Trade
Controls or his authorized designee which permits the
export or temporary import of a specific defense article
. . . .” 22 C.F.R. § 120.20.
Brokering activities that require prior written approval
include the following:
(1) Brokering activities pertaining to certain
defense articles . . . covered by or of a na-
ture described by Part 121, to or from any
country, [including] . . . foreign defense
articles . . .
(2) Brokering activities involving defense
articles . . . covered by, or of a nature de-
scribed by Part 121, in addition to those
specified [above], that are designated as
significant military equipment under this
Regulations in effect in 2004-05, during which time the
name “Office of Defense Trade Controls” was in use.
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35
subchapter, for or from any country not a
member of the North Atlantic Treaty Orga-
nization, Australia, New Zealand, or Japan
whenever . . . [t]he recipient or end user is
not a foreign government or international
organization.
22 C.F.R. §§ 129.7(a)(1)(vii) & (a)(2)(iv).
3. Transportation of a Machinegun or
Destructive Device
Title 18, United States Code, Section 922(a)(4)
criminalizes the transportation in interstate or foreign
commerce of a machinegun or destructive device without
a license. This statute provides, in relevant part, that it
shall be unlawful
for any person, other than a licensed im-
porter, licensed manufacturer, licensed
dealer, or licensed collector, to transport in
interstate or foreign commerce any destruc-
tive device [or] machinegun (as defined in
section 5845 of the Internal Revenue Code
of 1986) . . . except as specifically autho-
rized by the Attorney General consistent
with public safety and necessity.
18 U.S.C. § 922(a)(4).
The term “machinegun” is defined as:
“any weapon which shoots, is designed to
shoot, or can be readily restored to shoot,
automatically more than one shot, without
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36
manual reloading, by a single function of
the trigger. . . .
26 U.S.C. § 5845(b).
The statute defines “destructive device” to include:
(1) any explosive, incendiary, or poison gas
(A) bomb, (B) grenade, (C) rocket having a
propellent charge of more than four ounces,
(D) missile having an explosive or incendi-
ary charge of more than one-quarter ounce,
(E) mine, or (F) similar device; (2) any type
of weapon by whatever name known which
will, or which may be readily converted to,
expel a projectile by the action of an explo-
sive or other propellant, the barrel or barrels
of which have a bore of more than one-half
inch in diameter, except a shotgun or shot-
gun shell which the Secretary finds is gener-
ally recognized as particularly suitable for
sporting purposes[.]
26 U.S.C. § 5845(f).
4. Aiding and Abetting Liability
The aiding and abetting statute provides that:
Whoever commits an offense against the
United States or aids, abets, counsels, com-
mands, induces, or procures its commission,
is punishable as a principal.
18 U.S.C. § 2(a).
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37
To convict a defendant on a theory of aiding and
abetting, the Government is required to prove that the
underlying crime was committed by a person other than
the defendant and that the defendant acted with the intent
of advancing the commission of the underlying crime. See
United States v. Hamilton, 334 F.3d 170, 180 (2d Cir.
2003), United States v. Best, 219 F.3d 192, 199 (2d Cir.
2000); see also United States v. Pipola, 83 F.3d 556, 562
(2d Cir. 1996) (“To show specific intent the prosecution
must prove the defendant knew of the proposed crime . .
. and had an interest in furthering it.”) (citing United States
v. Wiley, 846 F.2d 150, 154 (2d Cir. 1988)). Aiding and
abetting “requires a defendant’s conscious assistance in
the commission of the specific underlying crime.” United
States v. Pipola, 83 F.3d at 562. The Government is not
required to prove that the defendant knew all of the details
of the crime. United States v. Best, 219 F.3d at 199-200.
Rather, it is sufficient that the evidence demonstrate that
the defendant “joined and shared in the underlying crimi-
nal endeavor and that his efforts contributed to its suc-
cess.” Pipola, 83 F.3d at 562 (citing United States v.
Zambrano, 776 F.2d 1091, 1097 (2d Cir. 1985)). The
evidence of knowledge and intent can be circumstantial,
and “must include some indicia of the specific elements of
the crime . . . . [such as] evidence that the defendant
participated in conversations directly related to the sub-
stance of the conspiracy[,] . . . received a share of the
profits from the conspiracy[, or] . . . explicitly confirm[ed]
the nature of the activity in which the co-conspirators were
engaged.” United States v. Samaria, 239 F.3d 228, 235-36
(2d Cir. 2001) (internal quotations marks and citations
omitted).
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38
5. Pinkerton Liability
Under the Supreme Court’s decision in Pinkerton v.
United States, 328 U.S. 640 (1946), “once a conspiracy
has been established, the criminal liability of its members
‘extends to all acts of wrongdoing occurring during the
course of and in furtherance of the conspiracy.’” United
States v. Gallerani, 68 F.3d 611, 620 (2d Cir. 1995)
(quoting United States v. Bryser, 954 F.2d 79, 88 (2d Cir.
1992)). Under Pinkerton, a co-conspirator who does not
commit a substantive offense directly “may be liable for
that offense if it was committed by another coconspirator
in furtherance of the conspiracy and was a reasonably
foreseeable consequence of the conspiratorial agreement.”
Rosario v. United States, 164 F.3d 729, 734 (2d Cir. 1998)
(quoting United States v. Pimentel, 83 F.3d 55, 58 (2d Cir.
1996)).
Pinkerton is not a “broad principle of vicarious liability
that imposes criminal responsibility upon every co-con-
spirator for whatever substantive offenses any of their
confederates commit.” United States v. Bruno, 383 F.3d
65, 90 (2d Cir. 2004) (citing United States v. Jordan, 927
F.2d 53, 56 (2d Cir. 1991)). Under Pinkerton, rather, “co-
conspirator liability was carefully confined to substantive
offenses that are (a) committed ‘in furtherance of the
conspiracy,’ and (b) ‘reasonably foresee[able]’ by the co-
conspirator sought to be held responsible ‘as a necessary
or natural consequence of the unlawful agreement.’”
United States v. Jordan, 927 F.2d at 56 (quoting
Pinkerton, 328 U.S. at 647-48). “Whether a particular
crime is foreseeable and in furtherance of the conspiracy
is a factual matter for the jury.” United States v. Romero,
Page 66
39
897 F.2d 47, 51 (2d Cir. 1990). Accordingly, a trial judge
may properly charge a jury — as the Court did here (see
Tr. 2106-08) — that it “‘may find a defendant guilty on a
substantive count without specific evidence that he
committed the act charged if it is clear that the offense had
been committed, that it had been committed in furtherance
of an unlawful conspiracy, and that the defendant was a
member of that conspiracy.’” United States v. Gallerani,
68 F.3d at 620 (quoting United States v. Harwood, 998
F.2d 91, 100 (2d Cir. 1993)); see also United States v.
Salameh, 152 F.3d 88, 149-50 (2d Cir. 1998) (approving
Pinkerton instruction).
B. Discussion
The evidence was more than sufficient to support the
jury’s verdict against Kharabadze on Counts One and
Two. Kharabadze contends that there was insufficient
evidence of the following: (1) that Kharabadze willfully
violated United States law in that he knew it was against
the law to broker an arms deal or transport a machinegun
or destructive device (Kharabadze Br. 40, 47); (2) that the
weapons in question were in fact United States Munitions
List items (Kharabadze Br. 39, 47) or were a
“machinegun” or “destructive device” (Kharabadze
Br. 53); (3) that Kharabadze himself negotiated prices or
transfers of such weapons, or had a financial stake in the
deal (Kharabadze Br. 39, 46); (4) that Kharabadze played
any role in the weapons brokering scheme after June 9,
2004 (Kharabadze Br. 43); (5) that Kharabadze spoke to
any overseas any arms dealers overseas about a weapons
deal (Kharabadze Br. 42, 44-45); and (6) that Kharabadze
knew that Solomonyan was not licensed to deal in fire-
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40
arms. (Kharabadze Br. 53). Each of these contentions fails,
for the reasons stated below.
1. There Was Sufficient Evidence of
Kharabadze’s Intent
Kharabadze contends that there was insufficient
evidence that he had the requisite level of knowledge and
intent to broker an arms deal or transport a machine gun or
destructive device. (Kharabadze Br. 40, 47-48). The
contention is without merit. There was ample evidence
that Kharabadze willfully entered into a conspiracy to
engage in the business of brokering activities with respect
to Munitions List items, as charged in the first object of
Count One, and to transport a machinegun or destructive
device in interstate or foreign commerce, as charged in the
second object of Count One, and that he aided and abetted
Solomonyan and Spies as they engaged in the business of
brokering activities with respect to Munitions List items,
as charged in Count Two. The recordings offered at trial
established, among other things, that Kharabadze was
conscious of his guilt, and therefore he understood that
what he was doing was wrong and illegal. See, e.g., United
States v. Gordon, 987 F.2d 902, 907 (2d Cir. 1993)
(holding that criminal intent may be proven through
circumstantial evidence, including evidence of conscious-
ness of guilt).
There are at least three ways in which Kharabadze
demonstrated his consciousness of guilt and therefore, that
he knew he was breaking the law in the United States,
where he lived. First, Kharabadze’s consciousness of guilt
was proven through his treatment of the price list.
Kharabadze instructed Solomonyan to insist that Davis not
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41
copy the price list when Davis and Solomonyan met in
Manhattan; instead, Davis was required to memorize it. At
the June 9, 2004 meeting, when Solomonyan gave
Kharabadze’s prices to Davis, Solomonyan insisted that
Davis memorize the list rather than copy it down.
Solomonyan said, referring to the list, “This is the range.
Can you try to memorize this, this is the range, approxi-
mate. This is the (UI) price range.” (Kharabadze A. 161).
Indeed, Solomonyan repeated the instruction to memorize
the list again and again to Davis over the course of their
June 9 meeting. (Kharabadze A. 161, 163, 181).
Solomonyan further indicated that the instruction to
memorize the list had been communicated to him by
another person: “Just try to memorize it [the price list]. . . .
that’s what they want you to do[,] memorize[.]”
(Kharabadze A. 163) (emphasis added). The jury reason-
ably could have concluded that “they” referred to
Kharabadze because he is the one who provided the price
list. Kharabadze had only one reason to require that Davis
not copy the list — to avoid creating an incriminating
document that might fall into the hands of law enforce-
ment agents in the New York area. If Kharabadze believed
that Solomonyan or Spies had a license to broker a deal in
or transport foreign military weapons, or that it was
otherwise legal to do so, he would not have insisted on this
precaution.
Second, Kharabadze showed his consciousness of guilt
when he mentioned to Solomonyan on April 23, 2004,
that, with respect to “the peacekeeping Kantemirovskaya
Division” there was “no making a deal with them,”
meaning, these particular Russian troops could not be
bribed in furtherance of obtaining weapons. (Tr. 253). If
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42
Solomonyan or Spies had the proper license to broker or
transport these weapons, or if it was otherwise lawful to do
so, there would be no reason to resort to a bribe to obtain
them; in that case, the weapons could be bought openly,
without a bribe. From this evidence, a reasonable jury
could have inferred that Kharabadze’s awareness of the
need for bribery demonstrated his understanding that his
participation in the conspiracy was wrong and illegal.
Third, Kharabadze was careful when he spoke on the
telephone with Solomonyan. A rational jury could have
found that he did so because he feared the calls could be
traced back to him by United States law enforcement
agents. As Solomonyan said to Davis at their May 2004
meeting, Kharabadze “doesn’t really doesn’t speak over
the phone much. This is his house phone. . . . [H]e calls me
very smartly . . . if I don’t know what he’s talking about
. . . I can see him in person.” (Solomonyan A. 264-65).
To prove that Kharabadze acted with the requisite
knowledge and intent, the Government did not need to
prove that Kharabadze knew about the Munitions List, per
se ,or the licensing requirement to broker a transaction in
Munitions List items or transport machinegun or destruc-
tive device in foreign commerce. As the Court properly
instructed the jury (Tr. 2070), a defendant need not have
known which particular law or rule he was breaking; he
need only have been aware of the unlawful nature of his
acts. See Bryan v. United States, 524 U.S. 184, 191-96
(1998) (holding that to convict a defendant of unlicenced
firearms dealing, in violation of 18 U.S.C. §922 (a)(1)(A),
the evidence must prove that the defendant knew his
conduct was unlawful, but not awareness of the specific
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43
law he is charged with violating); United States v. Ali, 68
F.3d 1468, 1473 (2d Cir. 1995) (“To prove willfulness
[under 18 U.S.C. § 922(e)], the government need not
establish that the defendant had specific knowledge of the
statute he is accused of violating, nor that he had the
specific intent to violate the statute.”).
2. There Was Sufficient Evidence that the
Price List Included Munitions List
Items and a Machinegun or
Destructive Device
Kharabadze contends that there was insufficient
evidence that the weapons in question were on the United
States Munitions List or were a machinegun or destructive
device. (Kharabadze Br. 47). Kharabadze does not contest
the evidence that the following weapons were on the
United States Munitions List at the relevant time: RPGs,
SAMs, and machineguns. (Tr. 1201-03). Accordingly, if
the price list contained any of these items, it contained
items on the Munitions List.
Based on the June 2004 meetings, a reasonable jury
could have found that RPGs, RPG launchers, SAMs, and
machineguns were indeed on Kharabadze’s price list. At
the June 9, 2004 meeting, when Solomonyan discussed
Kharabadze’s price list with Davis, Solomonyan referred
to, among other things, “hand grenade[s]” with “50-meter”
and “200-meter” ranges.” (Kharabadze A. 164). These are
RPGs. Later during the same meeting, Solomonyan
referred to a “launcher” (Kharabadze A. 204), a reference
to an RPG launcher. Two days later, on June 11, 2004,
Solomonyan and Davis continued their discussion about
the items on Kharabadze’s list. At this time, Davis placed
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an order for “warheads” and “launchers,” which
Solomonyan, Spies and Davis collectively referred to as
“flyers,” code for RPGs. (Kharabadze A. 223). Also
during the June 11, 2004 meeting, Solomonyan and Davis
explicitly discussed the price of “Stingers,” which
Solomonyan acknowledged to be a type of “surface to air
heat seeking missile.” (Kharabadze A. 221). When Davis
suggested that the price listed for Stingers is “fairly
cheap,” Solomonyan stated that he was also “surprised” by
the price, but that the prices are “what they told me.”
(Kharabadze A. 221, 223) (emphasis added). A reasonable
jury could find that “they” referred to Kharabadze, who
provided the price list to Solomonyan only two days
before. Also during this conversation, Davis placed an
order for “fully automatic AK[-47]s” (Kharabadze A. 223-
24) which are, by definition, machineguns. See 26 U.S.C.
§ 5845(b) (defining a machinegun as a weapon that
“shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.”). A reason-
able jury could have found from these conversations that
RPGs, SAMs, and machineguns were on Kharabadze’s
price list, and therefore that the price list contained items
on the United States Munitions List.
With respect to the second object of Count One — the
conspiracy to transport a “machinegun” or “destructive
device” in interstate or foreign commerce — the same
June 2004 conversations provide ample evidence that
Kharabadze’s price list included a “machingun” and a
“destructive device.” “[F]ully automatic AK[-47]s”
(Kharabadze A. 223-24) are machineguns. And based on
the testimony of FBI explosives expert Richard Stryker, a
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reasonable jury could find that Stingers and RPGs consti-
tuted “destructive devices” within the meaning of Title 26,
United States Code, Section 5845(f). Stryker testified that
a rocket-propelled grenade is a “high explosive antitank
[warhead]” that is launched under “rocket” power
(Tr. 1139-40), and that a Stinger is a “single-person
shoulder launched missile.” (Tr. 1139).
With respect to the foreign commerce element, a
reasonable jury could find that the weapons in question
were to come from Eastern Europe and therefore involved
transport in foreign commerce. Spies, in one of the first
calls with Davis, referred to “Russian made” RPGs, which
were to come “from there.” (SA 136). Kharabadze, in a
telephone conversation with Solomonyan, referred to
prices of weapons on “Russian bases.” (Tr. 901).
Solomonyan explained to Baregamyan that the weapons
would be shipped from Leninakan to the Republic of
Georgia and then to the United States by ship. (Tr. 381-
82).
3. The Government Was Not Required to
Prove that Kharabadze Personally
Negotiated the Prices of an Arms
Deal or that He Had a Financial Stake
in the Deal
Kharabadze contends that there was insufficient
evidence to convict on Counts One and Two because the
Government did not prove that Kharabadze personally
negotiated the prices or other details or an overseas arms
deal, or that he had a financial stake in the deal.
(Kharabadze Br. 46-47). This argument fails because the
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Government was not required to prove these things to
establish a violation of Counts One or Two.
As an initial matter, Kharabadze’s arguments on this
point do not apply to the second object of Count One:
conspiracy to transport a machinegun or destructive device
in foreign commerce. This second object has no
“brokering” element, and it contains no requirement of any
expectation of compensation. Accordingly, the Govern-
ment need not prove Kharabadze received or had any
expectation of receiving any compensation for him to be
guilty of conspiracy to transport a machinegun or destruc-
tive device, as charged in the second object of Count One.
Indeed, because there was sufficient evidence that
Kharabadze conspired to transport a machinegun or
destructive device, Kharabadze’s conviction on Count One
may be affirmed on that basis alone.
Second, there was ample evidence that Solomonyan
and Spies acted as brokers and expected to collect money
from Davis in exchange for providing the arms.
Solomonyan repeatedly mentioned to Spies his expectation
that he would make money from any deal with Davis. For
example, in January 2005, Solomonyan told Spies, “[I]f
we make a deal we’ll make money.” (SA 232). One week
later, Solomonyan said to Spies, “I’ll get his [Davis’s]
money.” (SA 242). Because Kharabadze conspired with
Solomonyan and Spies, it is irrelevant that Kharabadze did
not negotiate prices himself or receive any compensation
in the end.
Third, there was sufficient evidence from which a
reasonable jury could infer that, although Kharabadze did
not personally negotiate prices or receive a fee, he under-
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stood that Solomonyan and Spies expected to earn a fee or
other compensation for their brokering activities — and
that Kharabadze himself expected to earn a fee.
Kharabadze understood that the object of Solomonyan’s
negotiations with Davis was to make money. In June 2004,
Kharabadze provided a price list of weapons, the purpose
of which, Solomonyan told him, was to show
Solomonyan’s customer, Davis, “at least something real”
in furtherance of the negotiations. (Tr. 901-02). The
discussion of prices with a customer necessarily entails
negotiations and a prospect of earning money from a
transaction. Moreover, given the highly illicit nature of
brokering in RPGs and SAMs — the manifest danger of
which is obvious — a reasonable jury could infer
Kharabadze understood that Solomonyan would not do so
without expectation of “fee, commission, or other consider-
ation” (22 C.F.R. § 129.2(a)), and that Kharabadze himself
also expected consideration of some kind.
4. The Duration of Kharabadze’s
Participation in the Scheme
Kharabadze contends that there is insufficient evidence
that he had any role the overseas arms scheme before April
2004, or after June 9, 2004, when he provided the price list
to Solomonyan. (Kharabadze Br. 42-44). The argument
fails.
First, the extent or duration of a defendant’s participa-
tion in a criminal scheme has no bearing on the issue of a
defendant’s guilt. The liability of a co-conspirator or aider
and abettor is not measured by the extent or duration of his
participation; each member may perform separate and
distinct acts and may perform them at different times. See
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e.g., United States v. Nersesian, 824 F.2d 1294, 1303 (2d
Cir. 1987) (affirming jury’s finding of a single conspiracy
to import and distribute heroin despite lapse of time and
“change in membership” when jury could reasonably
conclude that some conspirators “participated throughout
the entire period of the conspiracy, while others were
involved in its early stages, and still others became
involved in its late stages”).
Moreover, once the existence of a conspiracy has been
proven, a single act may be sufficient for a reasonable jury
to draw an inference that a given defendant “was involved
in a criminal enterprise of substantial scope, which was
likely to involve other persons.” United States v. DeNoia,
451 F.2d 979, 981 (2d Cir. 1971). Where the single act is
such as to justify an inference of knowledge of the broader
conspiracy, that is sufficient. See, e.g., United States v.
D’Amato, 493 F.2d 359, 365 (2d Cir. 1974).
Here, there was ample evidence that Kharabadze took
numerous actions in furtherance of the conspiracy. He
spoke to Solomonyan by telephone about the status of his
efforts to acquire military weapons from overseas on April
23, 2004. On June 9, 2004, Kharabadze furnished a price
list of weapons that included, among other things, RPGs,
Stinger SAMs, and machineguns. Therefore, it is irrelevant
whether Kharabadze intended to commit any overt act
after June 9. Through his actions up through and including
June 9, 2004, he showed that he agreed to participate in
the conspiracy charged in Count One.
In any event, Kharabadze is incorrect when he states
that there is no evidence of his involvement after June
2004. As the District Court found at Kharabadze’s sen-
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tencing (Kharabadze A. 627), as late as January 7, 2005,
Kharabadze was willing to meet with Davis regarding an
overseas arms deal. (Kharabadze A. 260-61).
To the extent that Kharabadze is now arguing that he
withdrew from the conspiracy after June 9, 2004, that
argument is without merit. First, even if Kharabadze had
withdrawn on that date, he would still be guilty, as he
would have participated in the conspiracy during the
limitations period. See United States v. Yannotti, 541 F.3d
112, 123 (2d Cir. 2008). Thus, it is hardly surprising that
Kharabadze never took the position at trial that he with-
drew from the conspiracy. Moreover, there is no evidence
that Kharabadze took any affirmative step to withdraw.
See United States v. Geibel, 369 F.3d 682, 695 (2d Cir.
2004) (“To withdraw from a conspiracy, a person must
take some affirmative action either by making a clean
breast to the authorities or communicating the abandon-
ment in a manner reasonably calculated to reach co-con-
spirators.”) (quoting United States v. Jackson, 335 F.3d
170, 182 (2d Cir. 2003)); United States v. Flaharty, 295
F.3d 182, 192 (2d Cir. 2002) (“Withdrawal is an affirma-
tive defense, and the defendant has the burden of showing
that he performed affirmative acts that were inconsistent
with object of the conspiracy and communicated in a
manner reasonably calculated to reach co-conspirators.”)
(internal quotation marks and citations omitted).
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5. The Government Was Not Required to
Prove that Kharabadze Had Direct
Contact with Any Weapons Suppliers
in Eastern Europe or Elsewhere
Kharabadze contends that there was insufficient
evidence that he had any direct contact with any weapons
suppliers in Eastern Europe or elsewhere. (Kharabadze
Br. 42, 44-45). The contention fails for two reasons. First,
the Government was not required to prove that
Kharabadze had direct contact with overseas weapons
suppliers. Such contact is not an element of the offenses
charged in Counts One and Two. Second, a reasonable
jury could conclude from Kharabadze’s April 23, 2004 call
with Solomonyan that Kharabadze did in fact have direct
contact with an overseas arms dealer. This is the call in
which Kharabadze informed Solomonyan that he had
learned that, as a result of Russian troop movements, there
would be a delay in getting military weapons because the
troops in question cannot be bribed. (Tr. 253). A reason-
able jury could find that Kharabadze got this information
from an overseas arms dealer.
In addition, the June 8, 2004 call between Solomonyan
and Kharabadze, viewed in the light most favorable to the
Government, contains additional evidence that Kharabadze
had overseas contact about weapons prices. Solomonyan
asked Kharabadze whether he could “write the stuff
down” regarding the information that they had previously
discussed when they were “at the movies.” (Tr. 900-01).
Without hesitation, Kharabadze replied, “Ah, the prices?”
Kharabadze said that he could get “approximate” prices,
but that he would “have to ask” to get them. (Tr. 901). A
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reasonable jury could conclude that Kharabadze was
referring to his overseas contacts. Kharabadze also
referred to his overseas contacts when he said, “It’s just
that at this point, they don’t know anything themselves,
well, they know approximately.” (Tr. 901) (emphasis
added). Based on this June 8, 2004 call, separate and apart
from the April 23, 2004 call, the jury could have inferred
that Kharabadze had overseas contacts who were helping
him acquire military weapons for Solomonyan to sell to
Davis. It is therefore irrelevant that there was no recorded
telephone call between Kharabadze and a weapons dealer
overseas, or a toll record of such a call. The Government
did not intercept every land line, pay phone, cellular
telephone, or other means of communication that
Kharabadze could possibly have used to contact overseas
arms suppliers.
6. Count Two: Aiding and Abetting and
Pinkerton Liability
For largely the same reasons that the evidence proved
that Kharabadze willfully participated in the conspiracy
charged in Count One, there was sufficient evidence to
convict Kharabadze of Count Two. Under an aiding and
abetting or Pinkerton theory, there was sufficient evidence
of Kharabadze’s willfulness to convict him of Count Two.
a. Aiding and Abetting
Viewed in the light most favorable to the Government,
there was ample evidence that the crime described in
Count Two occurred: Solomonyan and Spies “brokered”
in weapons that were on the United States Munitions List.
The only question, then, with respect to aiding and abet-
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ting liability, is whether Kharabadze acted with the
specific intent of advancing the commission of the under-
lying crime charged in Count Two. As discussed above,
there was ample evidence that Kharabadze knowingly and
intentionally engaged in actions to assist Solomonyan’s
scheme for the purpose of advancing the scheme. In April
2004, he told Solomonyan why there was a delay in
obtaining weapons from Eastern Europe (Tr. 252-54). In
June 2004, he gave Solomonyan a price list that included
RPGs, SAMs, and machineguns. (Tr. 901-02, 905-06;
Kharabadze A. 160). This list formed the basis for
Solomonyan’s negotiations with Davis on June 9 and June
11, 2004. (Kharabadze A. 159-216, 217-57). From this
evidence, the jury reasonably could have concluded that
Kharabadze intended to, and did, assist Solomonyan’s
scheme to broker a deal in items that were on the United
States Munitions List without the proper registration and
license.
With respect to Kharabadze’s intent to aid and abet the
commission of Count Two, there was sufficient evidence
of Kharabadze’s “willfulness.” As described above,
Kharabadze was careful in his use of his home telephone;
he instructed Solomonyan not to allow Davis to retain a
copy of the price list; and he understood that a bribe might
have been necessary to acquire the weapons overseas.
From this evidence, a reasonable jury could conclude that
Kharabadze intended to assist Solomonyan’s illegal
brokering scheme.
Kharabadze’s other contentions fail with respect to
aiding and abetting liability. To prove that Kharabadze
aided and abetted the commission of the crime charged in
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Count Two, the Government did not have the burden of
proving that he personally negotiated prices, received a fee
or expected to receive a fee; that he played a role after
June 9, 2004; or that he in fact had direct contact with
overseas weapons suppliers.
b. Pinkerton
The jury reasonably could have convicted Kharabadze
of Count Two on a Pinkerton theory for the same reasons
that they could have convicted him of Count One. For the
reasons stated above, when the evidence is construed in
the Government’s favor, the jury reasonably could have
found the following Pinkerton elements: (1) that the crime
charged in Count Two was committed by Solomonyan and
Spies; (2) that Solomonyan and Spies were member of the
conspiracy charged in Count One; (3) that the substantive
crime was committed pursuant to the common plan and
understanding that existed amongst the co-conspirators;
(4) that Kharabadze was a member of the conspiracy
charged in Count One at the time Solomonyan and Spies
committed the crime charged in Count Two; and (5) that
Kharabadze reasonably could have foreseen that
Solomonyan and Spies could commit the crime charged in
Count Two. (See Tr. 2106-07). Because Kharabadze never
“withdrew” from the conspiracy, he was a member of it
until it ended in March 2005; accordingly, even if
Solomonyan brokered a transaction in violation of Count
Two after June 9, 2004, Kharabadze was still a member of
the conspiracy at that time. The brokering activity engaged
in by Solomonyan after that date — as evidenced by his
procurement of photographs of weapons in 2005, for
example — was foreseeable to Kharabadze. The weapons
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shown in the photographs were largely the same weapons
on Kharabadze’s price list: machineguns (Tr. 1333-37), a
shoulder-fired heat-seeking anti-aircraft missile system
(Tr. 1133-35), an anti-tank wire-guided missile system
(Tr. 1137-38), and the like. A reasonable jury could have
found that it was foreseeable to Kharabadze that
Solomonyan would eventually broker a deal for these
kinds of weapons. Accordingly, a reasonable jury could
have found Kharabadze liable for Count Two under a
Pinkerton theory.
POINT II
The Evidence Was Sufficient to Support the
Jury’s Verdicts on the Domestic Gun
Trafficking Offenses
Nadirashvili, Chvelidze, and Vorobeychik contend that
there was insufficient evidence to support their convictions
on Counts Three and Four: the Domestic Gun Trafficking
Offenses. Count Three charged Solomonyan, Spies,
Vorobeychik, Nadirashvili, and Chvelidze with conspiring
to (1) engage in the business of dealing in firearms without
a license in violation of 18 U.S.C. § 922(a)(1)(A), and (2)
transfer or possess a machinegun in violation of 18 U.S.C.
§ 922(o). Count Four charged Solomonyan, Spies,
Vorobeychik, Nadirashvili, and Chvelidze with engaging
in the business of dealing in firearms without a license in
violation of 18 U.S.C. § 922(a)(1)(A).
The arguments are without merit. There was ample
evidence that, beginning in September 2004, Nadirashvili
and Chvelidze agreed to help Solomonyan obtain
machineguns and took affirmative steps to do so. There
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was also ample evidence that, during the same month,
Vorobeychik knowingly helped Solomonyan obtain guns
by introducing him to a gun supplier and agreed with
Solomonyan to split profits from further gun dealing
business.
A. Applicable Law
1. Unlicensed Firearms Dealing
Title 18, United States Code, Section 922(a)(1)(A),
provides in pertinent part that it shall be unlawful for any
person “except a . . . licensed dealer, to engage in the
business of . . . dealing in firearms, or in the course of such
business to ship, transport, or receive any firearm in
interstate or foreign commerce.” 18 U.S.C. 922(a)(1)(A).
A “firearm” is defined as any weapon “which will or is
designed to or may readily be converted to expel a projec-
tile by the action of an explosive.” 18 U.S.C.
§ 921(a)(3)(A). A person is “engaged in the business” of
dealing in firearms when he “devotes time, attention, and
labor to engaging in such activity as a regular course of
trade or business with the principal objective of livelihood
and profit[.]” 18 U.S.C. § 921(a)(21)(D). The phrase “with
the principal objective of livelihood and profit” means
“that the intent underlying the sale or disposition of
firearms is predominately one of obtaining livelihood and
pecuniary gain,” except that proof of profit is not “required
as to a person who engages in the regular and repetitive
purchase and disposition of firearms for criminal pur-
poses[.]” 18 U.S.C. § 921(a)(22).
The Government need not prove that dealing in
firearms is the defendant’s primary business. Nor is there
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any specific number of firearms purchases or sales that
must be specifically proven. See United States v. Carter,
801 F.2d 78, 81-83 (2d Cir. 1986).
2. Transfer or Possession of a
Machinegun
Title 18, United States Code, Section 922(o) provides,
in relevant part, that “[i]t shall be unlawful for any person
to transfer or possess a machinegun.” 18 U.S.C.
§ 922(o)(1). A “machinegun” is
any weapon which shoots, is designed to
shoot, or can be readily restored to shoot,
automatically more than one shot, without
manual reloading, by a single function of
the trigger.
26 U.S.C. § 5845(b).
B. Discussion
1. Nadirashvili and Chvelidze
Nadirashvili and Chvelidze’s challenges to the suffi-
ciency of the evidence on Counts Three and Four are
without merit. As an initial matter, the evidence amply
showed that Nadirashvili and Chvelidze conspired with
Solomonyan to commit the second object of the conspiracy
charged in Count Three: to transfer or possess a
machinegun in violation of 18 U.S.C. § 922(o).
Nadirashvili testified at trial that, on his initial call with
Solomonyan on September 11, 2004, Nadirashvili under-
stood within “a couple of seconds” that Solomonyan was
asking him to obtain machineguns. (Tr. 1433, 1460).
Nadirashvili further testified that when he first called
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Chvelidze on September 11, 2004, Chvelidze understood,
after about 30 seconds, that Nadirashvili was talking about
machineguns. (Tr. 1470). Indeed, the recording of this call
showed that Chvelidze understood Nadirashvili: Chvelidze
referred to machineguns as “the one that when you pull it
once it starts.” (Tr. 296-97).
Moreover, both Nadirashvili and Chvelidze took
affirmative steps to help Solomonyan obtain machineguns.
For example, on September 11, 2004, after Solomonyan
suggested that Nadirashvili call “Levan” Chvelidze to
obtain machineguns, Nadirashvili did so. Chvelidze, for
his part, agreed to call a particular dealer, whose name he
was careful not to mention. (Tr. 297 (“I don’t wanna say
the name”)). The next day, Chvelidze advised Solomonyan
that he would ask the other dealer for “this exact kind” —
meaning machineguns. (Tr. 306). Later that day, Chvelidze
reported back to Solomonyan on “the moves I’ve made so
far,” which included conversations with three different
dealers about their ability to get machineguns. (Tr. 314).
This evidence of Nadirashvili and Chvelidze’s participa-
tion in a conspiracy to transport or possess a machine
gun — that is, the second object of Count Three — is
sufficient by itself to sustain the jury’s verdict with respect
to Count Three. See, e.g., Griffin v. United States, 502
U.S. at 56-57 (holding that multi-object conspiracy verdict
must be affirmed so long as evidence is sufficient as to one
of the objects).
The evidence, including the intercepted telephone
conversations, also proved that Nadirashvili and Chvelidze
conspired with Solomonyan to engage in the business of
dealing in firearms without a license and aided and abetted
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Solomonyan in committing that substantive offense. First,
the use of the code among Solomonyan, Nadirashvili, and
Chvelidze, and Chvelidze’s careful avoidance of mention-
ing the name of another dealer on the telephone (Tr. 297),
showed that they understood Solomonyan was not a
lawfully registered firearms dealer. Otherwise, there would
have been no reason not to speak openly. Second,
Nadirashvili and Chvelidze both learned from Solomonyan
that he was attempting to acquire the machineguns not for
himself but for another person — a person who had paid
money up front. (Tr. 292, 297). That is, Solomonyan was
in business for profit. Understanding that this was a
business transaction, Chvelidze asked Nadirashvili, “Tell
me if you want to place an order or something.” (Tr. 298).
Third, Nadirashvili and Chvelidze both understood that
Solomonyan had multiple possible sources of supply, as a
gun dealer would. (Tr. 292, 307, 308). When this evidence
is viewed in the light most favorable to the Government,
crediting every inference that the jury might have drawn in
the Government’s favor, it is sufficient to sustain the jury’s
verdict on the first object of Count Three — conspiracy to
participate in unlicensed firearms dealing — and Count
Four — aiding and abetting unlicensed firearms dealing.
2. Vorobeychik
Vorobeychik contends that there was insufficient
evidence of his intent to support the jury’s verdict on
Counts Three and Count Four because reasonable, non-
criminal inferences could be drawn from the conversations
between Vorobeychik and Solomonyan. (Vorobeychik
Br. 16, 19, 21, 23). In fact, there was ample evidence that
Vorobeychik conspired with Solomonyan to engage in the
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business of dealing in firearms without a license and aided
and abetted Solomonyan in committing that substantive
offense.
First, the recorded conversations between Vorobeychik
and Solomonyan showed that they had a meeting of the
minds on the subject of guns. Although their conversations
included some cryptic language, neither Vorobeychik nor
Solomonyan was confused about what the other was
talking about. For example, in their first call, on Septem-
ber 12, 2004 at 11:41 p.m., Vorobeychik volunteered, “I’ll
just call [McQueen] so that he understands who’s who and
what’s what.” (Tr. 320). Solomonyan did not ask
Vorobeychik to explain what he meant by this. Shortly
thereafter, Vorobeychik reported back to Solomonyan that
he had spoken to McQueen, and told Solomonyan that he
had said to McQueen, “‘Artur will call you. Don’t be
afraid of what he’s gonna talk to you about.’” (Tr. 324).
Here also, Solomonyan did not ask Vorobeychik to
explain, and Vorobeychik did not feel the need to explain.
Each understood that the other knew what he was talking
about — guns. Indeed, the cryptic nature of these calls
helped establish that Vorobeychik and Solomonyan both
understood that Solomonyan’s gun dealing was unlicensed
and illegal. When Vorobeychik followed up two weeks
later (on September 30, 2004) with Solomonyan to find
out if McQueen had obtained guns for him (Tr. 337-38,
341), Solomonyan explicitly used a slang term for guns:
Solomonyan said “I only need two pieces.” (Tr. 338)
(emphasis added). Vorobeychik did not ask Solomonyan
what he meant by “pieces” — thereby confirming that he
understood Solomonyan was talking about guns.
Solomonyan further explained to Vorobeychik on this call
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that he gave “a few pieces, good ones” to McQueen in a
trade, thereby indicating that he (Solomonyan) had exist-
ing an inventory of guns, as a dealer would. (Tr. 338-39).
Vorobeychik’s statement to law enforcement agents
about this September 30, 2004 call also supports the jury’s
finding that he understood, at the time of the offense, that
Solomonyan was dealing in guns. Law enforcement agents
asked Vorobeychik what he meant when he asked
Solomonyan, “Can they really get it?” In response,
Vorobeychik admitted that “they” referred to McQueen,
but he refused to answer when asked what he meant by
using the word “it.” (Tr. 341). A rational jury could find
that Vorobeychik refused to answer because he knew, at
the time of the conduct in question, that “it” meant guns.
Even if “other reasonable interpretations” of this and other
calls “were clearly possible” (Vorobeychik Br. 19), that
fact does not provide a basis for disturbing the jury’s
verdict, because “the task of choosing among competing,
permissible inferences is for the [jury], not for the review-
ing court.” United States v. McDermott, 245 F.3d at 137.
Vorobeychik contends that McQueen’s failure to
immediately understand Solomonyan’s code words in the
first call between McQueen and Solomonyan “demon-
strates conclusively that Vorobeychik did not tell
McQueen that Solomonyan would be calling him about
guns, or that he would be talking in ‘code.’” (Vorobeychik
Br. 17). Even if this were true, it would not mean that
Vorobeychik did not know that Solomonyan would be
calling McQueen about guns. All it would show is that
Vorobeychik chose not to tell McQueen what Solomonyan
would be talking about, in code or otherwise. Indeed,
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Vorobeychik himself said that he only told McQueen the
following to prepare McQueen for Solomonyan’s call:
I told him, “Artur [] will call you. Don’t be
afraid of what he’s going to talk to you
about. You saw him,” and that’s it[.]
(Tr. 324). Given how little Vorobeychik said to McQueen
to prepare him for Solomonyan’s call, it is not surprising
that McQueen did not at first understand Solomonyan’s
code. In any event, McQueen’s state of mind when he
began speaking to Solomonyan is irrelevant. The relevant
question is whether Vorobeychik agreed with Solomonyan
to help him acquire firearms for dealing. A reasonable jury
could make this finding based on the evidence.
A telephone conversation on October 8, 2004 (Tr. 360-
63), provided an additional evidence that Vorobeychik
understood that Solomonyan was engaging in the business
of dealing in firearms. On this call, Vorobeychik and
Solomonyan agreed to share profits from further gun
dealing with each other, under an arrangement in which
they would buy guns directly from “Allah” — Allah
McQueen. (Tr. 361-63). As they discussed this arrange-
ment, Vorobeychik stated,
We have to build the empire again, Artur. .
. . I once had a good empire. . . . But this
one will provide permanent income. I al-
ready know it, large income. . . . [I]f you
have a good turnover in three, four months,
your income — Let’s take me for example,
I never made less than 30.
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(Tr. 362-63). Vorobeychik and Solomonyan further agreed
that Vorobeychik would “discuss finances” with
McQueen. Vorobeychik said, “Yeah, he’ll get 25 percent
from us, and it will be fucking great for him.” (Tr. 363).
Although Vorobeychik and Solomonyan did not specify
that guns were the subject matter of this proposed for-
profit venture, a reasonable jury could find, when the
evidence is viewed as a whole, that Vorobeychik fully
understood this. See United States v. Diaz, 176 F.3d 52, 89
(2d Cir. 1999) (stating that, in assessing the proof at trial,
the Court is obligated to analyze every piece of evidence
“not in isolation but in conjunction[.]”). This is particu-
larly so because only six days before this October 8, 2004
call, Solomonyan and Spies bought two guns from
McQueen. (Tr. 287, 344, 350-53; SA 180-81, 185-86, 188-
93).
Vorobeychik’s reliance on United States v. Torres, 604
F.3d 58, 69-70 (2d Cir. 2010) and similar cases where this
Court held that there was insufficient evidence that a
defendant understood that he was involved in a narcotics
deal, as opposed to a deal that merely involved illegal
contraband of some kind, is misplaced. The cases are
distinguishable. Among other things, the evidence in those
cases did not include the contents of communication
between the defendant in question and a co-conspirator
showing that the defendant understood the nature of the
contraband. See e.g., United States v. Torres, 604 F.3d at
70 (finding “no proof of any narcotics-related conversation
to which [the defendant] was a party”); see also id. at 67-
69 (collecting and summarizing cases); United States v.
Lorenzo, 534 F.3d 153, 160 (2d Cir. 2008) (finding “no
evidence in the record as to the contents” of a critical
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conversation between the defendant and another person);
United States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004)
(“Critically absent, however, is any evidence of the precise
contents of the conversations.”); United States v. Fried-
man, 300 F.3d 111, 125 (2d Cir. 2002) (finding no evi-
dence of the “substance” or the “participants” of a 43
minute call); United States v. Samaria, 239 F.3d 228, 235-
36 (2d Cir. 2001) (finding no evidence of the defendant’s
“knowledge or intent through evidence that the defendant
participated in conversations related to the substance of
the conspiracy”). By contrast, here, the evidence included
the contents of several incriminating calls between
Vorobeychik and Solomonyan. In particular, in a Septem-
ber 30, 2004 call, Vorobeychik heard Solomonyan use the
slang word “pieces” three times to signify guns. (Tr. 338-
39). Vorobeychik did not ask for clarification. Accord-
ingly, a reasonable jury could find that Vorobeychik
understood that Solomonyan was dealing in guns, as
opposed to some other kind of contraband.
3. Solomonyan and Spies
Without argument, Solomonyan and Spies join
Nadirashvili, Chvelidze, and Vorobeychik’s sufficiency
challenges to Counts Three and Four. (Solomonyan Br. 62
n.7; Spies Br. 42). The evidence described above over-
whelmingly supported the jury’s verdict against
Solomonyan and Spies on both counts. As early as July 17,
2004, Solomonyan and Spies used coded language to
discuss their efforts to obtain new and used machineguns
to sell to Davis for profit. (SA 158-62). In all, they bought
eight guns to sell to Davis, including one machinegun.
(Tr. 287; SA 255). When this and other evidence is viewed
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in the light most favorable to the Government, there was
ample evidence to support the convictions of Solomonyan
and Spies on Counts Three and Four.
POINT III
The Arms Export Control Act Is Not
Unconstitutionally Vague
Kharabadze argues that the provision of the Arms
Export Control Act, which requires anyone who is “in the
business of brokering activities with respect to the manu-
facture, export, import, or transfer of any foreign defense
article or defensive service” to be registered with the
U n i t e d S t a t e s g o v e r n m e n t , 2 2 U . S . C .
§ 2778(b)(1)(A)(ii)(I), is unconstitutionally vague as
applied to him. This claim is meritless. The express
language of the statute and its implementing regulations
define the very terms that Kharabadze contends are vague.
Kharabadze’s conduct fit squarely within the statutory
prohibition on unlicensed arms dealing, and his efforts to
conceal the crime demonstrate that he was well aware of
that fact. Accordingly, Kharabadze’s constitutional
challenge should be rejected.
A. Applicable Law
1. Vagueness Challenges
“[T]he void-for-vagueness doctrine addresses concerns
about (1) fair notice and (2) arbitrary and discriminatory
prosecutions.” Skilling v. United States, 130 S. Ct. 2896,
2933 (2010). To determine whether a statute is unconstitu-
tionally vague, the Supreme Court has established a two-
part test. That test:
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65
requires that a penal statute define the crimi-
nal offense [1] with sufficient definiteness
that ordinary people can understand what
conduct is prohibited and [2] in a manner
that does not encourage arbitrary and dis-
criminatory enforcement.
Kolender v. Lawson, 461 U.S. 352, 357 (1983); accord
United States v. Gagliardi, 506 F.3d 140, 147 (2d Cir.
2007). To meet these requirements, the statute need not
define the offense with “mathematical certainty,” Grayned
v. City of Rockford, 408 U.S. 104, 110 (1972), but must
provide only “minimal guidelines to govern law enforce-
ment.” Kolender, 461 U.S. at 358 (internal quotation
marks omitted). “[D]ue process does not require ‘impossi-
ble standards of clarity.’” Kolender, 461 U.S. at 361
(internal quotation marks omitted). In addition, a criminal
statute’s scienter requirement “may mitigate a law’s
vagueness, especially with respect to the adequacy of
notice . . . that [the] conduct is proscribed.” Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 499 (1982); United States v. Roberts, 363 F.3d
118, 123 (2d Cir. 2004) (because narcotics analogue
statute contains scienter requirement, vagueness challenge
“must be met with some measure of skepticism, at least
with regard to the ‘fair notice’ prong of Kolender.”).
Where, as here, “the interpretation of a statute does not
implicate First Amendment rights, it is assessed for
vagueness only ‘as applied,’ i.e., ‘in light of the specific
facts of the case at hand and not with regard to the stat-
ute’s facial validity.’” United States v. Rybicki, 354 F.3d
124, 129 (2d Cir. 2003) (en banc) (quoting United States
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66
v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)). That means
that “one whose conduct is clearly proscribed” by a law
may not challenge the law on the ground of vagueness.
United States v. Strauss, 999 F.2d 692, 698 (2d Cir. 1993);
accord, e.g., United States v. Amer, 110 F.3d 873, 878-79
(2d Cir. 1997).
In determining Congress’s intent in the context of a
void-for-vagueness challenge, a court relies upon custom-
ary tools of statutory interpretation: most notably the
language of the statute itself. See e.g., Posters ‘N’ Things,
Ltd. v. United States, 511 U.S. 513, 517-19 & n.6 (1994);
United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)
(rejecting “as applied” challenge to Major Fraud Act), as
well as the statute’s legislative history, Nadi, 996 F.2d at
550 (deeming common-sense interpretation of “value of
the contract” to be “confirmed by the statute’s legislative
history”); United States v. Amer, 110 F.3d at 878 (chal-
lenge to clarity of phrase “parental rights” in International
Parental Kidnapping Crime Act fails because Congress
made meaning “clear in the legislative history of the Act”).
“The classification of a federal statute as void for
vagueness is a significant matter,” Columbia Natural
Resources, Inc. v. Tatum, 58 F.3d 1101, 1105 (6th Cir.
1995). “‘[E]very reasonable construction must be resorted
to, in order to save a statute from [being declared]
unconstitutional[l]y [vague].’” Columbia Natural Re-
sources, Inc. v. Tatum, 58 F.3d at 1105 (quoting Chapman
v. United States, 500 U.S. 453, 464 (1991)); see Skilling,
130 S. Ct. at 2929 (“It has long been our practice, how-
ever, before striking a federal statute as impermissibly
vague, to consider whether the prescription is amenable to
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67
a limiting construction.”). As the Supreme Court has
explained, the void-for-vagueness doctrine
does not invalidate every statute which a
reviewing court believes could have been
drafted with greater precision. Many statutes
will have some inherent vagueness, for [i]n
most English words and phrases there lurk
uncertainties. Even trained lawyers may find
it necessary to consult legal dictionaries,
treatises, and judicial opinions before they
may say with any certainty what some stat-
utes may compel or forbid.
Rose v. Locke, 423 U.S. 48, 49-50 (1975) (internal quota-
tion marks and citation omitted); accord United States v.
Herrera, 584 F.2d 1137, 1149 (2d Cir. 1978).
2. The Arms Export Control Act
As described above, the Arms Export Control Act
(“AECA”), 22 U.S.C. § 2778, authorizes the President to
establish the United States Munitions List, which includes
“defense articles” and “defense services” whose import
and export is subject to registration and licensing require-
ments. See 22 U.S.C. § 2778(b). The AECA has a scienter
requirement and provides that a willful violation of the
statute or its implementing regulations subjects an of-
fender to criminal sanction. See 22 U.S.C. § 2778(c).
The AECA authorizes the President to promulgate
regulations for the import and export of defense articles
and services, and the Department of State, exercising the
authority delegated to it by the President, has promulgated
the International Traffic in Arms Regulations, 22 C.F.R.
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68
§§ 120.1-130.17. These regulations include the Munitions
List, which consists of categories of military items that
cannot be imported or exported without a license from the
Department of State. See generally United States v. Sun,
278 F.3d 302, 306 (4th Cir. 2002).
Count Two of the Indictment charges Kharabadze and
others with violating (and aiding and abetting a violation)
of 22 U.S.C. § 2778(b)(1)(A)(ii) and (c). These provisions
state in part:
As prescribed in regulations issued under
this section, every person . . . who engages
in the business of brokering activities with
respect to the . . . import, or transfer of any
foreign defense article. . ., shall register with
the United States Government agency
charged with the administration of this
section.
22 U.S.C. § 2778(b)(1)(A)(ii)(I).
Count One of the Indictment charges Kharabadze and
others with entering into a conspiracy, one of the objects
of which was to violate the AECA.
B. Discussion
Kharabadze argues “that he could not reasonably have
understood that his contemplated conduct was proscribed”
(Kharabadze Br. 26 (internal quotation omitted)), because
the AECA’s reference to “the business of brokering
activities” is “cryptic” and “fatally vague” (id. at 25).
Kharabadze argues, more specifically, that the statute is
vague in two ways: the term “brokering activities” would
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69
not reasonably have encompassed his conduct of providing
price information, and the term “engaged in the business
of” would not reasonably have encompassed his one-time
conduct. (Kharabadze Br. 32-34). Kharabadze does not
challenge as vague the Munitions List itself or the defini-
tion in the AECA of “foreign defense articles.”
Kharabadze’s argument is meritless in light of the text
of the AECA itself and its implementing regulations,
which defines both the terms “brokering activities” and
“engages in the business of.” With respect to brokering
activities, the statute defines that term to “include the
financing, transportation, freight forwarding, or taking of
any other action that facilitates the manufacture, export, or
im p o r t o f a de fense a r t ic le .” 22 U .S .C .
§ 2778(b)(1)(A)(ii)(II). The regulations further provide:
Brokering activities means acting as a bro-
ker as defined in § 129.2(a), and includes
the financing, transportation, freight for-
warding, or taking of any other action that
facilitates the manufacture, export, or im-
port or a defense article or defense service,
irrespective of its origin. . . .
22 C.F.R. § 129.2(b) (emphasis added).
Thus, on its face, the AECA applies to individuals, like
Kharabadze, who willfully finance, transport, or take any
other action that facilitates the importation of defense
articles in the United States without registering and
seeking a license. Based on the language of the statute and
its implementing regulations, ordinary people can under-
stand the conduct the AECA prohibits. See Kolender, 461
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70
U.S. at 357-58. As a result, this Court and other Courts of
Appeals courts have repeatedly rejected void-for-vague-
ness challenges to the AECA. See United States v. Hsu,
364 F.3d 192, 196-98 (4th Cir. 2004); United States v.
Sun, 278 F.3d 302, 308-10 (4th Cir. 2002); United States
v. Lee, 183 F.3d 1029, 1031-33 (9th Cir. 1999); United
States v. Gregg, 829 F.2d 1430, 1437 (8th Cir. 1987);
United States v. Swarovski, 592 F.2d 131, 133 (2d Cir.
1979).
Kharabadze argues that the statute is nonetheless vague
because the word “facilitate” in the definition of
“brokering activities” “does not clearly signify anything in
particular.” (Kharabadze Br. 32). But that is not a vague-
ness challenge; rather, Kharabadze complains about the
statute’s broad sweep. However, that was precisely Con-
gress’s intent. In 1996, Congress amended the AECA to
make clear that it applies to anyone who engages in the
business of brokering activities to export, import, and
transfer Munitions List items:
The registration and licensing requirements
originally extended only to those individuals
“engage[d] in the business of manufactur-
ing, exporting, or importing” the articles and
services on the Munitions List. [22 U.S.C.]
§ 2778(b)(1)(A)(I); see also [22 U.S.C.]
§ 2778(b)(2). In 1996, however, Congress
enacted the Brokering Amendment, which
expanded the scope of the AECA’s registra-
tion and licensing requirements to cover
“every person . . . who engages in the busi-
ness of brokering activities with respect to
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71
the manufacture, export, import, or transfer
of” the articles and services on the Muni-
tions List. Id. § 2778(b)(1)(A)(ii)(I).
United States v. Yakou, 428 F.3d 241, 243 (D.C. Cir.
2005).
The cases on which Kharabadze relies were decided
before the 1996 change to the AECA that expanded its
reach beyond manufacturers, importers, and exporters to
include those, like Kharabadze, who broker arms deals,
whether by financing, transporting, freight forwarding, or
the taking of any other action to facilitate the import of
defense articles.*
More to the point, Kharabadze’s actual conduct falls
squarely within the conduct prohibited by the AECA. As
described more fully above, Kharabadze knowingly and
willfully conspired to participate in, and aided and abetted,
the unlicensed brokering of an arms deal involving RPGs,
SAMs, and machineguns. He represented himself to
Solomonyan as a connection to arms in Eastern Europe,
conveyed real-time developments affecting his ability to
import those weapons to the United States, and gave to
Solomonyan a list of weapons that he could obtain and
their associated prices — including items on the Munitions
List. More than six months later, in January 2005, he was
Kharabadze’s attempt to draw a parallel to 18*
U.S.C. § 922(a)(1) (Kharabadze Br. 30) is misplaced,
because that statute does not contain a brokering clause
similar to that in the amended Section 2778.
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willing to meet with Davis, the prospective purchaser. As
the district court explained:
[T]he irreducible facts are that Mr.
Solomonyan and Mr. Kharabadze had dis-
cussions as early as April of 2004, regarding
the acquisition of serious military weapons,
the purpose of which can only have been for
purposes of mass destruction and that Mr.
Kharabadze, either directly or indirectly,
had conversations with weapons suppliers
[overseas] in that time period. The words of
Mr. Kharabadze himself in those conversa-
tions established that fact.
It’s also true that subsequent to that, Mr.
Solomonyan called up Mr. Kharabadze and
asked for information, to which Mr.
Kharabadze responded, do you mean the
price list, and Mr. Solomonyan said yes.
Then they arranged for Mr. Solomonyan to
travel to Mr. Kharabadze’s apartment at
10:00 in the morning in June 2004. I think
that the jury was surely entitled to conclude
that the purpose of that meeting was for Mr.
Kharabadze to provide Mr. Solomonyan
with a price list of military weapons. A few
hours later, Mr. Solomonyan provided
verbally, not written but verbally, a price list
of military-grade weapons, including, for
example, rocket-propelled grenades.
The most persuasive interpretation of that
series of events that was laid before the jury
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73
was that at this point in time, Mr.
Kharabadze had knowingly and intention-
ally decided to assist Mr. Solomonyan and
Mr. Spies in a conspiracy to acquire, trans-
port, and possess military weapons. Indeed,
I am not sure that there is any other interpre-
tation of the facts that are in evidence.
(Kharabadze A. 651-62).
Likewise, in denying Kharabadze’s request for a
minor-role adjustment, the district court found that “the
court is unable to conclude that someone who is the
contact point for arms dealers in Georgia, which is estab-
lished by Mr. Kharabadze’s own words on the telephone
in April and June of 2004, can be described as a minor or
minimal participant.” (Kharabadze A. 655). Plainly,
Kharabadze took action to facilitate the import of a
defense article into the United States.
Kharabadze’s contention that the statute did not
reasonably put him on notice that his conduct was criminal
is also belied by his own actions. Throughout his involve-
ment in the conspiracy — which unfolded over many
months (see, e.g., Kharabadze A. 657) — Kharabadze
evidenced his own awareness that what he was doing was
prohibited by the lengths to which he went to conceal his
involvement. He typically refused to talk on the phone,
requiring Solomonyan to meet him in person. He also
insisted that Solomonyan required Davis to memorize the
price list, rather than write it down, so it would not fall
into the hands of law enforcement.
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74
Indeed, numerous courts have emphasized the impor-
tance of the explicit scienter provision of the AECA in
rejecting vagueness claims. See United States v.
Swarovski, 592 F.2d at 132 (stating that under AECA’s
predecessor statute, 22 U.S.C. § 1934 (1970), the defen-
dant’s claim of unconstitutional vagueness “comes with
little grace from one who was fully cognizant of the
wrongfulness of his acts”); United States v. Lee, 183 F.3d
at 1032-33 (noting that the AECA scienter requirement
“protects the innocent exporter who might accidentally and
unknowingly export a proscribed component or part whose
military use might not be apparent”); United States v. Hsu,
364 F.3d at 197 (explaining “that because the AECA
permits an arrest only if an individual acts ‘with the
requisite criminal intent,’ it cannot be deemed constitu-
tionally vague as applied”) (quoting United States v. Sun,
278 F.3d at 309). In sum, Kharabadze’s constitutional
challenge to the AECA should be rejected.
POINT IV
The District Court Acted Within Its Discretion
in Denying Nadirashvili’s Severance Motion
Nadirashvili asserts that the District Court abused its
discretion in denying his severance motion. Nadirashvili
contends that his joint trial with Solomonyan, Spies, and
Kharabadze, who were charged with the Overseas Arms
Trafficking Offenses, resulted in “prejudicial spillover”
because Nadirashvili was charged only with the Domestic
Gun Trafficking Offenses. (Nadirashvili Br. 72-75). The
argument is without merit. Much of the evidence that
Nadirashvili complains of would have been admitted
against him even in a separate trial on the Domestic Gun
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75
Trafficking Offenses, and any potential for prejudice was
obviated by the Court’s careful instructions to the jury.
A. Relevant Facts
1. The District Court’s Denial of a
Severance
Before trial, Nadirashvili, Chvelidze, Kharabadze, and
Spies moved for a severance on two grounds: (1) the
length and complexity of the trial, and (2) the risk prejudi-
cial spillover. The District Court denied the motion.
United States v. Solomonyan, 452 F. Supp. 2d 334, 357-58
(S.D.N.Y. 2006). With respect to the spillover issue, the
District Court ruled that “[w]hile some risk of prejudice
exists, differing levels of culpability and proof are inevita-
ble in any multi-defendant trial and standing alone, are
insufficient grounds for separate trials.” Id. at 358 (internal
quotation marks omitted). The District Court further ruled
that, although two separate conspiracies were charged in
the indictment, “the conspiracies charged in Counts One
and Three are not mutually exclusive and both have at
their core the alleged activities of Solomonyan and Spies
who. . . have been indicted on both counts.” Solomonyan,
452 F. Supp. 2d at 358. The District Court concluded that
the defendants are unable to show that a
joint trial will prejudice them to a degree
that amounts to a miscarriage of justice or to
a degree that cannot be addressed through
carefully crafted limiting instructions.
Solomonyan, 452 F. Supp. 2d at 358.
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76
On March 2, 2007, as trial approached, Nadirashvili
and Kharabadze renewed their motion for severance on
“spillover” grounds. (Nadirashvili A. 93). At a pretrial
conference on March 5, 2007, the District Court denied the
motion “largely for the same reasons I have set forth in
[the previous written] opinion.” (Nadirashvili A. 93-94).
2. Jury Instructions
As part of the main jury charge, the District Court
instructed the jury to consider the evidence against each
defendant separately:
There are six defendants on trial before you.
You must, as a matter of law, consider each
count of the indictment and each defen-
dant’s involvement in that count separately,
and you must return a separate verdict on
each defendant for each count in which he
has been charged.
In reaching your verdict, bear in mind that
guilt is personal and individual. Your ver-
dict of guilty or not guilty must be based
solely on the evidence about each defen-
dant. The case against each defendant, on
each count, stands or falls upon the proof or
lack of proof against that defendant alone,
and your verdict as to any defendant on any
count should not control your decision as to
any other defendant or any other count.
(Tr. 2025; see also Tr. 2027). The District Court further
instructed:
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77
[S]ome of the testimony that you have heard
in this case has been admitted only with
respect to Counts One and Two . . . . Let me
emphasize that such evidence should be
considered only against defendants
Solomonyan, Spies and Kharabadze and
only with respect to Counts One and Two.
Such evidence should not be considered at
all in determining whether the guilt of any
other defendant has been proven beyond a
reasonable doubt.
(Tr. 2026.). In addition, when the District Court described
the Indictment and explained the elements of each count,
it stated, as to each count, which Appellants were charged.
(Tr. 2041-43, 2058-60, 2077, 2083, 2090, 2097-98, 2103).
B. Applicable Law
Rule 14 of the Federal Rules of Criminal Procedure
provides that if the joinder of defendants in an indictment
“appears to prejudice a defendant or the government,” a
district court may order separate trials, sever the defen-
dants’ trials, or “provide any other relief that justice
requires.” Fed. R. Crim. P. 14(a). The Supreme Court has
instructed, however, that district courts should only grant
a severance under Rule 14 when “there is a serious risk
that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro v.
United States, 506 U.S. 534, 539 (1993).
“There is a preference in the federal system for joint
trials of defendants who are indicted together.” Id. at 537;
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78
see also United States v. Rosa, 11 F.3d 315, 341 (2d Cir.
1993). As this Court has stated, “well-recognized is the
proposition that joint trials serve the public interest in
economy, convenience, and the prompt trial of the ac-
cused.” United States v. Turoff, 853 F.2d 1037, 1039 (2d
Cir. 1988). Joint trials serve important purposes: they
“conserve[ ] judicial resources, alleviate[ ] the burdens on
citizens serving as jurors, and avoid[ ] the necessity of
having witnesses reiterate testimony in a series of trials.”
United States v. Lyles, 593 F.2d 182, 191 (2d Cir. 1979)
(quoting United States v. Borelli, 435 F.2d 500, 502 (2d
Cir. 1970)). As the Supreme Court has also recognized,
It would impair both the efficiency and the
fairness of the criminal justice system to
require . . . that prosecutors bring separate
proceedings, presenting the same evidence
again and again, requiring victims and
witnesses to repeat the inconvenience (and
sometimes trauma) of testifying, and ran-
domly favoring the last-tried defendants
who have the advantage of knowing the
prosecution’s case beforehand. Joint trials
generally serve the interests of justice by
avoiding inconsistent verdicts and enabling
more accurate assessment of relative cul-
pability—advantages which sometimes
operate to the defendant’s benefit. Even
apart from these tactical considerations,
joint trials generally serve the interests of
justice by avoiding the scandal and inequity
of inconsistent verdicts.
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79
Richardson v. Marsh, 481 U.S. 200, 210 (1987). The
presumption in favor of joint trials is particularly strong
where the defendants to be jointly tried are alleged to have
been members of the same conspiracy. United States v.
Zafiro, 945 F.2d 881, 885 (7th Cir. 1991), aff’d, 506 U.S.
534 (1993).
For this reason, the Supreme Court has instructed that,
even where there is some risk of prejudice from a joint
trial, less drastic measures — such as limiting instructions
— often suffice as an alternative to granting a Rule 14
severance motion. Zafiro v. United States, 506 U.S. at
539-41; see also United States v. Feyrer, 333 F.3d 110,
114 (2d Cir. 2003); United States v. Hernandez, 85 F.3d
1023, 1029-30 (2d Cir. 1996); United States v. Romero, 54
F.3d 56, 60 (2d Cir. 1995).
The decision whether to sever a defendant’s case from
those of his or her co-defendants under Rule 14 is “con-
fided to the sound discretion of the trial court,” United
States v. Feyrer, 333 F.3d at 114 (citations omitted), and
the trial court’s exercise of that discretion is “virtually
unreviewable” on appeal. United States v. Yousef, 327
F.3d 56, 150 (2d Cir. 2003) (internal quotation marks
omitted). A defendant challenging the denial of a sever-
ance motion faces an “extremely difficult burden.” United
States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989)
(quotations and citations omitted). It is not sufficient for a
defendant to show that he suffered some prejudice, or that
he would have had a better chance for acquittal at a
separate trial. Zafiro, 506 U.S. at 540. Instead, the defen-
dant must show that he suffered prejudice so substantial
that a “miscarriage of justice” occurred and that the denial
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80
of his motion constituted an abuse of the district court’s
discretion. United States v. Yousef, 327 F.3d at 150.
The mere fact that a case is complex, or that the trial
involved a large volume of evidence and multiple defen-
dants, taken alone, provides an insufficient basis for
challenging the district court’s refusal to grant a severance.
United States v. Casamento, 887 F.2d at 1149-51 (sever-
ance not mandated in a 17-month trial involving 21
defendants, thousands of exhibits, and more than 275
witnesses); see also United States v. Gallo, 668 F. Supp.
736, 749 (E.D.N.Y. 1987) (listing factors district courts
consider when deciding whether to order severance).
Courts generally do not assume that the jury was unable to
distinguish between the defendants or the counts charged.
Casamento, 887 F.2d at 1149-50. “Barring contrary
evidence, [the Court] must presume that juries follow the
instructions given them by the trial judge.” Id. at 1151.
Differing levels of culpability and quantity of proof
among defendants, standing alone, also do not provide
sufficient grounds for challenging the district court’s
refusal to grant a severance. United States v. Scarpa, 913
F.2d 993, 1015 (2d Cir. 1990). Instead, this Court “has
repeatedly recognized that joint trials involving defendants
who are only marginally involved alongside those heavily
involved are constitutionally permissible.” United States
v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993); see United
States v. Carson, 702 F.2d 351, 366-367 (2d Cir. 1983)
(fact that defendant played a less prominent role in the
conspiracy than many of his co-conspirators was not a
sufficient ground for a separate trial); United States v.
Aloi, 511 F.2d 585, 598 (2d Cir. 1975) (individual trials
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81
are not warranted merely because of “differences in degree
of guilt and possibly degree of notoriety of defendants”
and the “likelihood that proof admitted as to one or more
defendants will be harmful to others”); see also United
States v. Gallo, 668 F. Supp. at 749.
“Spillover prejudice” of the sort warranting severance
can occur only “when proof inadmissible against a defen-
dant becomes a part of his trial solely due to the presence
of co-defendants as to whom its admission is proper.”
United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998).
Where “[e]vidence at the joint trial of alleged coconspira-
tors . . . would have been admissible at a separate trial of
the moving defendant,” such evidence is “neither spillover
nor prejudicial” and a severance is not warranted. Rosa, 11
F.3d at 341; see also United States v. Diaz, 176 F.3d 52,
103 (2d Cir. 1999) (rejecting argument of substantial
spillover prejudice case where evidence would be admitted
against each defendant to show existence of joint enter-
prise); Casamento, 887 F.2d at 1153 (although defendants’
role was “comparatively minor,” they did not suffer
“substantial spillover prejudice” where “much of the
evidence the government presented at the joint trial
regarding the activities of alleged co-conspirators would
have been admissible in the single-defendant trials”);
United States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir.
1987) (where there is sufficient evidence to show the
existence of a conspiracy, the government is “entitled to
show the entire range of evidence of the conspiracy
against each [defendant]”).
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82
C. Discussion
The District Court acted well within its discretion in
denying the severance motions. The Appellants were
indicted together and charged in overlapping conspiracies,
with Solomonyan and Spies at the hub of both. The fact
that Nadirashvili, Chvelidze, and Vorobeychik had lower
levels of culpability and a lesser quantity of proof com-
pared to Solomonyan and Spies does not, standing alone,
constitute sufficient basis for a severance. United States v.
Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990). Even if
Nadirashvili, Chvelidze and Vorobeychik had been tried
separately, all the conduct of their co-conspirators
Solomonyan and Spies in furtherance of the Domestic Gun
Trafficking Offenses would have been admissible against
them. United States v. Bari, 750 F.2d 1169, 1178 (2d Cir.
1984); see also United States v. Nersesian, 824 F.2d 1294,
1304 (2d Cir. 1987). In addition, many of the acts and
statements of Solomonyan and Spies relating to the
Overseas Arms Trafficking Offenses would have been
admissible at a separate trial of Nadirashvili, Chvelidze,
and Vorobeychik to explain the background of the rela-
tionship between Solomonyan, Spies, and Davis, because
Davis was the purported buyer of the overseas arms as
well as the domestic guns. See United States v. Villegas,
899 F.2d 1324, 1347 (2d Cir. 1990) (finding no prejudicial
spillover where evidence regarding the furtherance of the
conspiracy would have been admitted at a severed trial);
Bari, 750 F.2d at 1178 (denying motion to sever even “the
least active, but nevertheless fully implicated conspirator”
because the evidence would have been admissible at a
severed trial); United States v. Rahman, 854 F. Supp. 254,
262 (S.D.N.Y 1994) (“Once such proof is shown to be
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admissible, there is no potential prejudice to be avoided by
severing the charges [or, in this case, defendants] to which
that proof relates.”).
Moreover, any possible risk of spillover prejudice was
reduced by the District Court’s careful instructions
concerning individual guilt and its clear description of
who was charged in what counts. See Hernandez, 85 F.3d
at 1029-30 (rejecting a claim of prejudicial spillover where
district court instructed the jury that “it was required to
consider the evidence against each defendant individually
for each count”).
In sum, the District Court’s “virtually unreviewable”
decision to deny a severance provides no basis for disturb-
ing the jury’s verdict. See, e.g., United States v. Yousef,
327 F.3d at 150.
POINT V
The District Court Properly Found that No
Due Process Violation Occurred As a Result
of Davis’s Destruction of a Small Number of
Recordings of His Conversations with an FBI
Agent
Spies contends that his due process rights were violated
when Davis, the Government’s confidential source,
destroyed a small number of recordings of conversations
between himself and a law enforcement agent. As a result,
Spies contends that the charges should be dismissed or he
should receive a new trial. (Spies Br. 39-41). In particular,
Spies contends that he was prejudiced because the de-
stroyed recordings contained impeachment material
relating to (1) the possibility that Davis would receive an
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84
award for his work as a confidential source, and (2) the
likelihood that Davis would have to testify at trial. (Spies
Br. 39-40).
The argument should be rejected. The District Court
correctly found, after a hearing at which Davis testified,
that the destruction of the recordings was not chargeable
to the Government because Davis destroyed them contrary
to instructions from the Government. Moreover, at trial,
Spies and the other Appellants had a full opportunity to
cross examine law enforcement agents about the destruc-
tion of the recordings and the potential issues raised by
Davis’s actions.
A. Relevant Facts
1. The Reconstruction Hearing
On February 27, 2007, the Government notified the
Appellants that it had recently learned that Davis had
destroyed a small number of tape recordings of conversa-
tions that he had recorded between himself and one of the
FBI agents who investigated this matter, FBI Special
Agent Cliff Carruth. (Spies A. 51). On or about May 18,
2007, Spies moved for a hearing to determine whether the
Indictment should therefore be dismissed on due process
grounds. (Spies A. 51-53).
On June 18, 2007, the District Court held a hearing to
determine (1) whether in fact Davis recorded conversa-
tions between himself and law enforcement agents; (2) if
so, what was on the recordings; and (3) what happened to
the recordings. (SA 40).
Davis was the only witness to testify at the hearing. He
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85
testified that, when he assisted the Government in the
investigation of this case in 2004 and 2005, he recorded,
on his own initiative, certain telephone conversations
between himself and Special Agent Carruth without
Special Agent Carruth’s knowledge. (SA 41, 54). Davis
further testified that he recorded five or fewer conversa-
tions with Carruth, and that he recorded them before the
Appellants were arrested in March 2005. (SA 42, 48, 52,
59, 62, 86). Davis further testified that the subject matter
of the recorded conversations included (1) Agent Carruth’s
statements to Davis concerning the likelihood that Davis
would have to appear in court (SA 43, 55), (2) Davis’s
request that Agent Carruth introduce an undercover agent
into the investigation to replace Davis (SA 43), and (3)
discussion about the possibility of a reward for Davis’s
assistance in the investigation. (SA 44-45). Davis did not
recall the subject matter of any other recorded conversa-
tions with Agent Carruth. (SA 46). Davis testified that he
placed the recordings of these conversations with Carruth
in a cupboard in his motor home (SA 55), and that he kept
them recordings separate from the recordings that he made
of his conversations with the Appellants. (SA 56). Davis
further testified that he did not destroy any recordings of
his conversations with the Appellants. (SA 70, 80).
Davis further testified that, eventually, he informed
Special Agent Mario Pisano that he had made the record-
ings. (SA 47, 65). Davis testified that, when he did so,
Agent Pisano instructed Davis to give the recordings to the
FBI. (SA 47, 66, 95-96). Instead, Davis testified, he
destroyed the only copy of the recordings (SA 46, 48, 67-
68) and told Agent Pisano that he did so later. (SA 69).
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86
Davis testified that no law enforcement agent told him to
destroy the recordings. (SA 48, 66).
After Davis testified and was cross-examined by four
defense counsel, the District Court denied Spies’ motion.
Specifically, the Court found:
[T]he evidence introduced at the hearing is
more than sufficient to establish that one of
the necessary prongs of the due process
argument raised by the defendants, that the
loss of any evidence be chargeable to the
government, is clearly missing here. And
the issue of what conversations the agents
had with Mr. Davis, as [the prosecutor]
points out, may well be fair game during the
trial, but it’s not, it seems to me, appropriate
for examination at the reconstruction hear-
ing.
The Court, therefore, is going to deny the
motion with respect to the alleged due pro-
cess violation on the grounds that there is no
evidence proffered of government complic-
ity in the destruction of the tapes.
(SA 113-114). The District Court also stated:
[T]he Court’s ruling on the due process
motion, of course, is without prejudice to
the defendants to renew if after the testi-
mony of the agents [at trial] the parties
believe that there is a new basis for the
motion.
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87
(SA 116).
2. Davis’s Availability To Testify at Trial
On March 5, 2007, the District Court selected a jury for
trial in this matter. On or about the evening of March 5,
2007, the Government learned that Davis had been
hospitalized after an apparent suicide attempt and notified
the District Court and the Appellants. (SA 11). On March
8, 2007, with the consent of the Government and the
Appellants, the Court declared a mistrial. (SA 25-26).
On June 5, 2007, the Court held a hearing on the issue
of whether Davis was available to testify. Two psycholo-
gists who had examined Davis testified. At the end of the
hearing, the Court authorized Spies to issue a subpoena for
Davis’s trial testimony. (SA 34). Thereafter, the Govern-
ment made Davis available so that the Appellants could
call him as a witness at trial in June and July 2007.
(Tr. 137). Neither the Appellants nor the Government
called Davis to testify at trial.
3. Trial Testimony
At trial, the Appellants extensively cross examined
three law enforcement agents — FBI Special Agents
Mario Pisano and Cliff Carruth, and ATF Special Agent
Ken Keener — concerning Davis’s destruction of the
recordings and his renumeration and expectation of a
reward.
a. Testimony Concerning the
Destroyed Recordings
Special Agents Carruth and Pisano testified about
Davis’s destruction of the recordings. Special Agent
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88
Carruth testified that he never gave permission to Davis to
record their conversations, and that Davis did not tell him
that he was doing so. (Tr. 974).
Special Agent Pisano testified that, in 2006, Davis
informed him that he had recorded approximately three or
four conversations with Carruth and possibly Keener.
(Tr. 573-76). Pisano further testified that he instructed
Davis to give him the recordings so that they could be
given to the federal prosecutor. (Tr. 578, 583, 777). Pisano
later learned Davis destroyed the recordings by burning
them. (Tr. 580). Pisano further testified that it was “un-
usual” for a confidential source to record conversations
with a law enforcement agent. (Tr. 578).
During Special Agent Pisano’s testimony, the jury was
instructed as follows:
Ladies and Gentlemen, the only evidence
before you is evidence that the confidential
informant, Mr. Davis, destroyed a certain
number of tapes he made of conversations
with one or possibly two FBI agents, and
that is the evidence before you, and that is
the only evidence before you.
(Tr. 776-77).
The Appellants also cross-examined Special Agent
Keener on this issue. Keener testified that he did not know
that Davis had destroyed any recordings. (Tr. 139). After
one defense counsel asked Special Agent Keener, “Did it
come to your attention at one point Kelly Davis did in fact
destroy tape-recorded evidence in this case?” (Tr. 134), the
Court instructed the jury as follows:
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89
Before we continue, I am going to instruct
the jury that there is no evidence in the case
that any of the consensual recordings be-
tween Mr. Davis and any of the defendants
in this case were destroyed.
(Tr. 139).
b. Testimony Concerning
Renumeration and Reward
All three agents testified concerning Davis’s
renumeration and expectation of a reward. Special Agents
Pisano, Carruth and Keener testified that Davis was paid
approximately $65,000 in total by the Government during
the investigation for expenses and services. (Tr. 566, 878,
132-33, 147-50). Special Agents Carruth and Keener
testified that they discussed with Davis the possibility that
Davis would receive an award at the end of the case.
(Tr. 879, 142). Carruth testified that Davis asked for an
award up to $100,000, and that he (Carruth) told Davis
that he could not promise any amounts. (Tr. 979-80).
B. Applicable Law
To establish a due process violation based on lost
evidence, three elements must be proven. First, the
evidence must be “material” and “exculpatory” such that
the evidence “‘possess[ed] an exculpatory value that was
apparent before the evidence was destroyed, and [was] of
such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available
means.’” United States v. Rastelli, 870 F.2d 822, 833 (2d
Cir. 1989) (quoting California v. Trombetta, 467 U.S. 479,
489 (1984)); see also Buie v. Sullivan, 923 F.2d 10, 11-12
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90
(2d Cir. 1990). Second, the defendant must establish “bad
faith on the part of the State” (Buie v. Sullivan, 923 F.2d
at 12) (internal quotation marks omitted) such that the loss
of the evidence is “‘chargeable to the State.’” United
States v. Rahman, 189 F.3d 88, 139 (2d Cir. 1999) (quot-
ing Colon v. Kuhlmann, 865 F.2d 29, 30 (2d Cir. 1988)).
Third, the misconduct must demonstrate “‘that the absence
of [fundamental] fairness infected the trial; the acts
complained of must be of such quality as necessarily
prevents a fair trial.’” Biue, 923 F.2d at 12 (alteration in
original) (quoting United States v. Valenzuela-Bernal, 458
U.S. 858, 872 (1982).
This Court held in United States v. Rahman that, where
an FBI confidential informant made unauthorized tape
recordings on his own of conversations between himself
and various defendants, and later destroyed some of these
recordings, the destruction was “not chargeable to the
Government” and therefore did not deny the defendants a
fair trial. United States v. Rahman, 189 F.3d at 139-40.
The Court ruled that the Government was not culpable for
the loss of the evidence because “the tapes in question
were not recorded at the Government’s request or instruc-
tion” and because there was “no indication that Govern-
ment agents made any request or instruction to destroy any
of the tapes.” Rahman, 189 F.3d at 140. The Court also
found that “the Government recovered all of the tapes that
[the confidential informant] made under formal FBI
supervision during the last weeks of the investigation” and
that there was “no reason to believe any lost tapes would
have been exculpatory.” Id.; see also Rastelli, 870 F.2d at
833-34 (holding that loss of three allegedly exculpatory
tape recorded conversations of government witness did not
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constitute due process violation); United States v.
Bakhtiar, 994 F.2d 970, 974-76 (2d Cir. 1993) (holding
that loss of recordings of six conversations did not consti-
tute due process violation).
C. Discussion
The District Court properly denied the due process
motion, because the Appellants could not meet any of the
three requirements to establish a violation.
First, the destroyed recordings did not constitute
“evidence” with “an exculpatory value that was apparent
before the evidence was destroyed.” Rastelli, 870 F.2d at
833. As an initial matter, the recordings in question were
not “evidence”; they only included inadmissible hearsay
statements of Davis and Special Agent Carruth. Moreover,
nothing on the destroyed recordings was “exculpatory”
under the circumstances of this case. The destroyed
recordings concerned three topics: (1) the FBI’s statements
to Davis concerning whether he would have to testify; (2)
Davis’s request to be replaced in the investigation by an
undercover agent; and (3) Davis’s discussions with the
FBI concerning a possible reward. (SA 43-45, 55). The
first two topics were not exculpatory in any respect. The
third topic — the possibility of a reward — constituted
impeachment material as to Davis if he testified, but he did
not testify. Because nothing on the destroyed recordings
was exculpatory, the holding of Rahman, in which the
Court found there was no due process violation even
though the destroyed recordings were between the confi-
dential informant and members of the conspiracy, applies.
See Rahman, 189 F.3d at 140 (“We also agree with Judge
Mukasey that there is no reason to believe any lost tapes
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92
would have been exculpatory.”). Here that holding applies
with even greater force because Davis destroyed record-
ings of his conversations with an agent, not with the
Appellants.
In addition, Spies cannot satisfy the first prong of this
due process test because the destroyed recordings were not
“of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available
means.” United States v. Rastelli, 870 F.2d at 833 (internal
quotation marks and citation omitted). Here, the Appel-
lants had the opportunity to, and did, cross-examine three
law enforcement agents at trial about their conversations
with Davis, including their conversations concerning a
possible reward.
With regard to the second prong of this three-part test,
Spies’s argument fails because here, as in Rahman, there
are no circumstances under which the destruction of
recordings can be “chargeable to the Government.”
Rahman, 189 F.3d at 140. As the District Court found,
Davis made the recordings and destroyed them on his own
initiative. (SA 113-14). This finding was not clearly
erroneous. The FBI did not instruct Davis to make the
recordings, and when Agent Pisano found out about them,
he instructed Davis to hand them over. (Tr. 578, 583, 777).
Accordingly, as in Rahman, “The tapes in question were
not recorded at the Government’s request or instruction,”
and “[t]here is no indication that Government agents made
any request or instruction to destroy any of the tapes.”
Rahman, 189 F.3d at 140. Indeed, the Government’s
instructions to Davis were exactly the opposite — to
preserve the recordings and provide them to the Govern-
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93
ment. Moreover, testimony at the June 5, 2007 hearing and
at trial proved that “the Government recovered all of the
tapes that [Davis] made under formal FBI supervision”
during this investigation.” Rahman, 189 F.3d at 140. On
this basis alone, the District Court’s denial of the due
process motion should be affirmed. See Rastelli, 870 F.2d
at 833 (“[T]he record is barren of proof that the govern-
ment lost the evidence in bad faith. On this ground alone,
the missing-evidence claim must fail.”).
As for the third prong of the test, the destruction of the
recordings did not create an “absence of [fundamental]
fairness” that “infected the trial,” and it was not “of such
quality as necessarily prevents a fair trial.” Biue, 923 F.2d
at 12 (alteration in original). The Appellants were able to,
and did, put before the jury the fact that Davis had de-
stroyed the recordings, as well as evidence of Davis’s
conversations with the agents about, among other things,
the possibility of a reward. Had the Appellants wanted the
jury to hear more about these topics, they could have
called Davis to testify. None of this had any “bearing upon
critical issues in the case and the strength of the govern-
ment’s untainted proof.” See United States v. Bakhtiar,
994 F.2d at 976 (holding that loss of six recordings did not
constitute due process violation) (internal quotation marks
omitted).
Because none of the three elements of this due process
test have been satisfied — and all three must be satisfied
for the Appellants to prevail on this issue — the District
Court properly denied the motion.
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94
POINT VI
The District Court Properly Denied
Kharabadze’s Motion for a Mistrial Based on
the Production of Telephone Records
In a supplemental pro se brief, Kharabadze argues that
the District Court should have declared a mistrial because
of the Government’s belated production of telephone
records that, he says, would have proved that he did not
make international calls to broker arms deals. The District
Court properly denied Kharabadze’s motion. Kharabadze’s
counsel elicited precisely the testimony that he was
looking for — that the Government had no telephone toll
record showing an international call from Kharabadze to
Eastern Europe prior to April 23, 2004. Accordingly,
Kharabadze was in no way prejudiced by the government’s
belated production.
A. Relevant Facts
As described above, on April 23, 2004, Kharabadze
advised Solomonyan by telephone that his efforts to obtain
certain weapons were being delayed by Russian military
exercises occurring in the area where the weapons were
being stored. Specifically, Kharabadze advised
Solomonyan that Kharabadze “found out a few things,”
including the fact that the efforts to obtain arms “has been
temporarily put on hold” for an uncertain period. (Tr. 252).
Kharabadze further informed Solomonyan that the reason
for the delay was that “the Russian side” was “closing the
borders” and “clearing minefields in those parts.”
(Tr. 252). Kharabadze attributed the problem to “the
peacekeeping Kantemirovskaya Division” and noted that
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95
“there’s no making a deal with them,” meaning, these
particular Russian troops could not be bribed in further-
ance of obtaining weapons. (Tr. 253).
In view of this critical telephone call, defense counsel
questioned whether there were any toll records showing
that Kharabadze had spoken to Eastern European suppli-
ers, as Kharabadze’s statements to Solomonyan during the
call indicate. Prior to trial, defense counsel requested a
great deal of information about any communications
between the defendants and sources in Europe. (Tr. 862).
At trial, Kharabadze’s counsel asserted that it was “essen-
tial to [their] defense that Mr. Kharabadze had no contact
with arms dealers in Eastern Europe.” (Tr. 865).
When the Special Agent Pisano testified, he confirmed,
just as Kharabadze had hoped, that the FBI had no toll
records showing any calls before April 23, 2004, between
a certain telephone of Kharabadze’s and phones in Eastern
Europe:
Q: As you sit on the stand now, do you
have any documents in your possession or
does the FBI have any documents in its
possession or the United States Attorney’s
Office have any documents in their posses-
sion indicating any phone calls made to
Europe prior to April 23, 2004, from that
telephone of Mr. Kharabadze?
A: I don’t remember the records, the
dates of the records. I know there were
phone cards being used.
* * *
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96
Q: As you sit on the stand now, are you
aware of any documents in your possession
or the possession of the government dealing
with any phone records of Mr. Kharabadze
prior to April 23, 2004?
A: To my recollection, I don’t recall. I
don’t think so.
(Tr. 655, 660). Under questioning, Special Agent Pisano
continued:
Q: You were also asked questions by [the
Government] about the phone calls that
were allegedly made prior to April 23, 2004,
correct, involving my client?
A. There were no calls before April 23,
2004 involving your client.
Q. Did you try to seek calls prior to
April 23, 2004?
A. Yes, we did.
Q. Did you subpoena those records?
A. We did, yes.
* * *
Q. As you sit on the stand now, do you
have any record or document which shows
any phone calls made to eastern Europe
prior to April 23, 2004 from the phone
located in the home of Ioseb Kharabadze
and Nicholas Nadirashvili?
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97
A. We don’t have phones showing the
typical 011 telephone number to dial over-
seas, no.
Q. The question is, do you have any
documentation whatsoever of any phone call
made from a telephone instrument located in
the home of Mr. Kharabadze and Mr.
Nadirashvili prior to April 23, 2004?
A. Prior to April 23, 2004, no, I don’t.
Q. Do you have any evidence whatso-
ever as you sit on the stand now that my
client ever owned a cell phone?
A. No.
Q. Do you have any evidence as you sit
on the stand now that my client ever used a
telephone card?
A. I don’t know that he used a telephone
card.
(Tr. 812, 817). Summing up, the defense asked:
Q. . . . As you sit on the stand now, do you
have any proof whatsoever of any phone
call emanating from Mr. Kharabadze’s
telephone located on West 87th Street to any
individual in Georgia or eastern Europe
involving weaponry?
A. No. We don’t have that conversation.
Q. You don’t have that conversation?
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98
A. We don’t have such a conversation.
(Tr. 820).
In the course of the trial, the Government discovered
that the FBI had received documents pertaining to
Kharabadze’s telephone records from prior to April 2004
that had not been previously turned over to the defense.
(Tr. 867). Once discovered, that material was produced to
the defense. (Tr. 865, 867). Kharabadze’s counsel none-
theless sought a mistrial. (Tr. 865). The Government
opposed the motion, noting, among other things, that the
“record states, as Mr. Greenfield made this point repeat-
edly in cross-examination and the government concedes,
there were no international calls before April 23. And
that’s what those documents show.” (Tr. 867-86).
The District Court denied Kharabadze’s application for
a mistrial, or, in the alternative, curative instructions. As
an initial matter, the Court “accept[ed] the government’s
representation that the late production of the [pen] regis-
ters was an oversight and not the result of any intentional
bad faith.” (Tr. 1360). The Court further found:
Agent Pisano . . . stated on cross-examina-
tion that the government has no documen-
tary proof of telephone calls from the sub-
ject phone to anyone in Eastern Europe
relating to weapons before or, for that mat-
ter, after April 23, 2004. . . .
Having established on cross-examination of
Agent Pisano the absence of any documen-
tary evidence of such calls, I don’t see any
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real prejudice to defendants from the late
production of the pre-April 23 pen registers.
Indeed, at the time of Mr. Greenfield’s
recross-examination of Agent Pisano, he
had possession of these pen registers and
established quite clearly through the cross
that the government did not have any docu-
mentary evidence of weapons discussions
on the subject telephone, as I said, prior to
April 23.
Thus, the defendants have established pre-
cisely what they sought to establish through
the direct testimony of the government’s
witness.
(Tr. 1360-61).
B. Applicable Law
Rule 16 of the Federal Rules of Criminal Procedure
requires the Government to permit the defense, upon
request, “to inspect and to copy or photograph” any
“books, papers, documents, data, photographs, [or]
tangible objects” in the Government’s possession, custody
or control, that are “material to preparing the defense.”
Fed. R. Crim. P. 16(a)(1)(E)(i). Rule 16 provides a number
of possible remedies for a party’s failure to comply with
its Rule 16 obligations, including ordering the production
of the materials in question; granting a continuance;
prohibiting the introduction of the undisclosed evidence;
or “any other order that is just under the circumstances.”
Fed. R. Crim. P. 16(d)(2).
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As this Court has noted, “[t]he trial court has broad
discretion to fashion a remedy for the government’s
violation” of its Rule 16 obligations. United States v. Thai,
29 F.3d 785, 804 (2d Cir. 1994). “The district court’s
admission of evidence following a violation of Rule 16(a)
is not an abuse of discretion . . . unless the violation
caused the defendant substantial prejudice.” Id.; see
United States v. Matthews, 20 F.3d 538, 548, 553 (2d Cir.
1994). This is particularly so where the Government’s
discovery failure was the result of inadvertence. See
United States v. Stevens, 985 F.2d 1175, 1181 (2d Cir.
1993) (court examines, inter alia, “the reason for its
nonproduction”).
Moreover, absent bad faith, the preclusion of evidence
is rarely an appropriate sanction for a discovery delay.
Rather, a continuance is the preferred remedy, “because it
gives the defense time to alleviate any prejudice it may
have suffered from the late disclosure.” United States v.
Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998) (citing United
States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th
Cir. 1985); see United States v. Giraldo, 822 F.2d 205,
212 (2d Cir. 1987) (“a court may allow previously undis-
closed tapes to be introduced after a delay of a few days to
permit counsel in the interim to inspect them and fashion
a challenge to them”).
C. Discussion
The District Court correctly denied Kharabadze’s
motion for a mistrial because there was absolutely no
prejudice flowing from the Government late disclosure of
the telephone records. As Kharabadze’s counsel made
clear in his application for a mistrial, the “essential” point
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was the defense’s contention “that Mr. Kharabadze had no
contact with arms dealers in eastern Europe” prior to April
2004. (Tr. 865). But that was precisely the testimony that
Kharabadze’s counsel elicited from Special Agent Pisano.
Indeed, defense counsel elicited the “essential” testi-
mony from Agent Pisano not once, but three separate
times, culminating in Agent Pisano conceding that he did
not “have any proof whatsoever of any phone call emanat-
ing from Mr. Kharabadze’s telephone located on West
87th Street to any individual in Georgia or [E]astern
Europe involving weaponry.” (Tr. 820). Thus, Kharabadze
was able to make the very point that the allegedly improp-
erly withheld records would have demonstrated. (See
Kharabadze pro se Brief at 3 (“If defense would have
possessed the subpoenaed phone records, they would have
proved to the jury that there were no phone calls made to
Eastern Europe other than the ones to the relatives of the
head of household.”)).*
To the extent that Kharabadze’s brief can be*
construed to raise a Brady claim, it should be rejected for
an additional reason, as well. To demonstrate a Brady
violation, “a defendant must show: (1) the Government,
either willfully or inadvertently, suppressed evidence; (2)
the evidence at issue is favorable to the defendant; and (3)
the failure to disclose this evidence resulted in prejudice.”
In re United States (Coppa), 267 F.3d 132, 140 (2d Cir.
2001). Besides being unable to demonstrate prejudice, as
discussed above, Kharabadze cannot show that the Gov-
ernment “suppressed” evidence, as the material was
ultimately made available to the defense in time to be used
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Because Kharabadze cannot demonstrate the substan-
tial prejudice, the District Court acted well within its
discretion in denying the mistrial motion. See United
States v. Stevens, 985 F.2d 1175, 1181 (2d Cir. 1993)
(where failure to produce Rule 16 material is inadvertent,
mistrial only appropriate on showing of substantial
prejudice).
POINT VII
The District Court Acted Within Its Discretion
in Declining To Allow Foreign Language
Recordings To Be Played During Trial
Nadirashvili contends that he was denied a fair trial
because the District Court denied a request to play for the
jury certain foreign-language recordings that had been
admitted into evidence. Nadirashvili contends that evi-
dence of the inflections, tone, and pace of conversation on
the foreign language recordings would have been helpful
to his defense. (Nadirashvili Br. 30). In particular,
Nadirashvili contends that he should have been permitted
to play certain recordings to (1) demonstrate the “surprise”
reflected in the voices of Nadirashvili and Chvelidze when
Solomonyan asked them to find machineguns; (2) demon-
strate Nadirashvili and Chvelidze’s “inability to quickly
comprehend ‘coded’ requests for guns”; and (3) counteract
the prosecutor’s ability “to graft his own inflections onto
the statements” and “accelerate the pace of the conversa-
tion” when translations were read to the jury. (Nadirashvili
at trial. See id. at 142 (“Brady material must be disclosed
in time for its effective use at trial.”).
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Br. 30-31). Nadirashvili’s argument fails. First,
Nadirashvili did not ask to play the recordings at trial, and
he has therefore forfeited this claim. Second, the points
that Nadirashvili purportedly wanted to make through the
playing of the recordings were made through other means.
Accordingly, the District Court did not abuse its discretion
in declining to allow the defense to play foreign language
recordings at trial.
A. Relevant Facts
1. Translations Offered at Trial
At trial, English translations of foreign-language
telephone conversations between and among the Appel-
lants were received in evidence through the testimony of
translators who had prepared the translations from the
original languages — Armenian, Russian, and Georgian.
(Tr. 175, 198, 210). Once the translations were admitted
into evidence, as a general matter, the Government read
them into the record during the testimony of various law
enforcement witnesses. In contrast, when the Government
presented English-language recordings to the jury, such as
those involving Spies and Davis, it played them aloud for
the jury while the jury followed along with transcripts that
had been prepared by the Government.
As part of his defense case, Chvelidze focused on a
particular translation — Government Exhibit 223T — a
translation of Nadirashvili’s call to Chvelidze on Septem-
ber 11, 2004, just after Solomonyan asked Nadirashvili to
help him obtain machineguns and suggested that he call
“Levan.” (Tr. 291, 294). On this call to Chvelidze,
Nadirashvili referred to machineguns as “cars” with
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“automatic transmissions.” One of the points that
Chvelidze argued below with respect to this call — and
that Nadirashvili makes on appeal — is that Chvelidze did
not immediately understand the code when Nadirashvili
used it, and therefore that Chvelidze (and Nadirashvili) did
not have the requisite intent.
The relevant passage of the call is as follows. At the
beginning of the call, Nadirashvili said to Chvelidze, “I
have a close friend — well, they need . . . try to guess what
I am telling you. They want — what is — cars with
automatic transmission, five of them. . . . The short ones,
you know, right?” (Tr. 295). Chvelidze replied, “Which
short ones, bro?” (Tr. 296). The conversation continued:
N. NADIRASHVILI: The ones with the
automatic transmission, the short run ones.
The small ones, cuties.
CHVELIDZE: Are you talking about
cars?
N. NADIRASHVILI: Yeah, you know the
ones they sell in Israel.
CHVELIDZE: I have no idea which one is
it.
N. NADIRASHVILI: Do you know which
cars I’m telling you about? With the auto-
matic transmission.
CHVELIDZE: There are a lot of cars with
automatic transmission.
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N. NADIRASHVILI: Try to guess what
I’m talking about? Fuck it. Do you under-
stand what I’m talking about?
CHVELIDZE: Aren’t you talking about
cars, are you talking about something else?
N. NADIRASHVILI: Come on — cars —
with the automatic transmission, the short
ones. The black ones.
CHVELIDZE: On, the one that I used to
have?
N. NADIRASHVILI: Yeah, but auto-
matic.
CHVELIDZE: The one that when you pull
it once it starts —
N. NADIRASHVILI: Yeah. That’s the
thing. They want it now, they have money.
CHVELIDZE: Oh, yeah?
N. NADIRASHVILI: Yes. They have
money and they need five of them.
CHVELIDZE: Wow.
N. NADIRASHVILI: Is there a kind of
dealer so that we can get it?
CHVELIDZE: You know this on . . .
what’s his name? I don’t wanna say the
name, we have said.
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106
(Tr. 296-97). When Nadirashvili testified about this
passage in his defense, he testified that it took about 30
seconds for Chvelidze to understand that Nadirashvili was
talking about guns and not cars. (Tr. 1470).
2. Chvelidze’s Expert Witness
As part of his defense case, Chvelidze requested to
offer a competing translation to this and other Government
translations, and to play certain foreign language record-
ings for the jury. (Tr. 1580-81). The District Court denied
Chvelidze’s request to play the recordings, ruling as
follows:
It’s the translations that are the evidence
here, . . . not the tapes. I don’t believe it’s
going to help the jury at all or the Court to
listen to foreign language tapes.
(Tr. 1582).
Part of Chvelidze’s basis for requesting to play this call
and others was so that the jury could hear the “inflections
and pace of speech” in the original recording. (Tr. 1583).
Specifically, Chvelidze complained that, when the prose-
cutor read the portion of Government Exhibit 223T that is
set forth above, the prosecutor read a key word uttered by
Chvelidze — “Wow” — “with an inflection that we
believe is wrong and communicated to the jury something
we believe is incorrect.” (Tr. 1583). Chvelidze called an
expert witness who testified on this point. (Tr. 1603). The
expert testified that when Chvelidze uttered the Georgian
word “va” — which the Government translated as
“[w]ow” — Chvelidze’s “tone of voice expressed surprise,
and it did not express any enthusiasm.” (Tr. 1603). Given
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this intonation, the expert testified, the word “va” should
have been translated not as “[w]ow” but as
“[u]ntranslatable expression of surprise” in the sense of
“being caught off guard.” (Tr. 1603-04). This alternate
translation of “va” was reflected in a competing translation
that Chvelidze offered through the testimony of his expert
witness. (Tr. 1604). The District Court received two other
competing translations through Chvelidze’s expert.
(Tr. 1598, 1606).
3. Jury Instructions
During trial, the Court explained to the jury that
English-language recordings were being played to the jury
(with English transcripts available as a guide), whereas
foreign-language recordings were being presented in the
form of translations. The Court explained that, with
respect to English-language recordings, “you can listen to
the tape and look at the transcript and then decide whether
the transcript is accurate.” (Tr. 271). The Court further
instructed,
You can’t do that with the foreign language
[recordings], of course, because the tapes
will be meaningless to you. So with the
foreign language transcripts, what you have
to do is evaluate the testimony you heard of
the translators and determine whether or not
you accept their testimony that the transla-
tions were accurate. That’s what you need to
do on these foreign language tapes.
(Tr. 271).
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As part of the main jury charge, the District Court
instructed the jury on this issue as follows:
You were provided with transcripts in Eng-
lish of foreign-language tape recordings.
With respect to the foreign-language tape
recordings, it is the English translation or
transcript which is in fact in evidence. The
inflection of any lawyer or witness who read
to you the English translation either on the
stand or during closing argument is not
evidence. I emphasize to you that even if
you understand Armenian, Russian, or
Georgian, it is still the English translation of
the transcripts, including any testimony
relating to the transcripts or foreign-lan-
guage conversations, that is the evidence
and not the foreign-language tape recording.
You on the jury are the fact-finders on the
issue of whether the translation of foreign
language recordings is correct or incorrect.
As such you, the jury, can accept or reject
the accuracy of the translations received in
evidence or any part of those translations or
choose to accept one translation over the
other.
(Tr. 2039).
B. Applicable Law
This Court has permitted district courts “broad discre-
tion regarding the admission of evidence” and the district
court’s “evidentiary determinations will be reversed only
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109
if they are ‘manifestly erroneous.’” See United States v.
Jackson, 335 F.3d 170, 176 (2d Cir. 2003) (quoting United
States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 87 (2d
Cir. 1999)). See also United States v. Aulet, 618 F.2d 182
(2d Cir. 1980) (“[The] Court is reluctant to overturn
evidentiary rulings in the absence of an abuse of the
district court’s broad discretion in these matters.”).
Specifically, “[t]he decision to receive in evidence English
translations of foreign-language transcript lies in the
discretion of the district court.” United States v. Chalarca,
95 F.3d 239, 246 (2d Cir. 1996); see also United States v.
Ben-Shimon, 249 F.3d 98, 100-01 (2d Cir. 2001) (holding
that where tape recordings of conversations in a foreign
language are introduced, transcripts of the English transla-
tions may be admitted as substantive evidence). United
States v. Ulerio, 859 F.2d 1144, 1145 (2d Cir. 1988);
United States v. Marin, 513 F.2d 974, 977 (2d Cir. 1975);
United States v. Franco, 136 F.3d 622, 626 (9th Cir.
1998).
The admissibility of English transcripts of foreign-
language recordings has two justifications. First,
“[t]ranscripts in a language other than English will almost
invariably be useless” to jurors who do not speak the other
language. Santos v. Keane, 1997 WL 414121, at *5
(S.D.N.Y. July 24, 1997) (internal quotation marks
omitted). Second, insofar as any juror can understand the
foreign language, that juror could impermissibly become
“an unsworn, uncross-examined and maybe even unquali-
fied provider of evidence to the other jurors.” United
States v. Carrera, 1998 WL 903467, at * 2 (E.D.N.Y. Dec.
21, 1998) (citations omitted). Accordingly, where foreign-
language tapes are admitted, the trial court may instruct
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the jury that the English translation of such tapes consti-
tutes evidence. See United States v. Bahadar, 954 F.2d
821, 830 (2d Cir. 1992); Ulerio, 859 F.2d at 1145-46;
Marin, 513 F.2d at 977.
Any alleged prejudice in using such a transcript can be
adequately addressed through limiting jury instructions.
United States v. Chalarca, 95 F.3d 239, 246 (2d Cir. 1996)
(“A limiting instruction by the district court concerning the
use of transcripts, which includes an instruction that the
jury is the ultimate factfinder, should alleviate any preju-
dice arising from the introduction of the transcripts.”); cf.
United States v. Bryant, 480 F.2d 785, 791 (2d Cir. 1973)
(“[C]autionary instructions eliminated whatever harmful
effect that might otherwise have resulted from any discrep-
ancies between the tape and the transcript.”).
Finally, errors in the admission of evidence should be
disregarded if found to be harmless. See Fed. R. Crim. P.
52(a) (“Any error . . . which does not affect substantial
rights shall be disregarded.”); United States v. Gigante,
166 F.3d 75, 82 (2d Cir. 1999). Accordingly, as long as
there is “fair assurance” that the jury’s “judgment was not
substantially swayed by the error,” the error will be
disregarded as harmless. Kotteakos v. United States, 328
U.S. 750, 764-65 (1946); United States v. Rea, 958 F.2d
1206, 1220 (2d Cir. 1992). For an error to be deemed
harmless, the court is “not required to conclude that it
could not have had any effect whatever; the error is
harmless if we can conclude that that testimony was
‘unimportant in relation to everything else the jury consid-
ered on the issue in question, as revealed in the re-
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cord.’”Id. (quoting Yates v. Evatt, 500 U.S. 391, 403
(1991)).
C. Discussion
Nadirashvili contends that he should have been permit-
ted to play certain recordings to convey certain points to
the jury, including the “surprise” reflected in the voices of
Chvelidze and Nadirashvili when Solomonyan asked them
to find machineguns. The argument fails. As a preliminary
matter, only Chvelidze, and not Nadirashvili, asked
permission to play recordings at trial. Accordingly, in
considering Nadirashvili’s claim on appeal, the District
Court’s decision should be reviewed only for plain error.
See, e.g., United States v. Bruno, 383 F.3d 65, 78 (2d Cir.
2004).
There was no error, much less plain error, in this case.
The District Court acted within its discretion in declining
to permit the foreign-language recordings to be played
because the substance of the recordings was properly
presented to the jury through the English translations.
United States v. Ulerio, 859 F.2d at 1145. As the District
Court concluded, it would have been useless to play the
recordings to demonstrate a moment of “surprise,” because
the jury could not have understood what was being said at
the critical moment, or any other moment. (Tr. 1582). This
determination was within the District Court’s discretion.
Moreover, Chvelidze was able to offer evidence of his
purported “surprise” through other means. Chvelidze
offered a competing translation and expert testimony to
establish that, when he realized that Nadirashvili was
looking for machineguns, he (Chvelidze) uttered an
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112
“[u]ntranslatable expression of surprise” in the sense of
“being caught off guard.” (Tr. 1603-04). Nadirashvili
testified that both he and Chvelidze were surprised at the
moment they realized they were being asked to look for
machineguns. (Tr. 1433). Playing the foreign language
recordings would not have added to the jury’s understand-
ing of this issue.
Nadirashvili also contends that the District Court
should have permitted the playing of the recordings to
demonstrate the length of time it took for both
Nadirashvili and Chvelidze to understand the “code” that
was used on these calls — that is, “cars” with “automatic
transmissions” as code for “machineguns.” Again,
Nadirashvili was able to establish this point through other
means. He testified that it took approximately 30 seconds
for Chvelidze to understand that he (Nadirashvili) was
talking about machineguns during the call in question,
Government Exhibit 223T. (Tr. 1470). Indeed, Chvelidze’s
initial struggle to understand the code was readily apparent
from the translation (GX 233T) itself. (Tr. 1433). Again,
playing the recordings would not have helped the jury
understand this point.
Nadirashvili further contends that the District Court
should have been permitted the playing of unspecified
foreign-language recordings in order to counteract the
prosecutor’s ability “to graft his own inflections onto the
statements” and “accelerate the pace of the conversation”
when translations were read to the jury. (Nadirashvili
Br. 30-31). However, the only “inflection” in question was
the prosecutor’s inflection when reading the word “Wow”
in Government Exhibit 233T, and this issue was addressed
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113
through the expert testimony and the competing translation
of Government Exhibit 223T. Moreover, any prejudice
was cured by the District Court’s instruction to the jury
that the “inflection of any lawyer or witness who read to
you the English translation . . . is not evidence.”
(Tr. 2039). Thus, the District Court properly denied the
request to play the foreign-language recordings.
Finally, because Nadirashvili was able to make his
points through other evidence, any error in declining to
play the foreign-language recordings would have been
harmless.
POINT VIII
The Government’s Jury Addresses Did Not
Deprive the Defendants of a Fair Trial
Nadirashvili and Spies argue that portions of the
Government’s main and rebuttal summations deprived
them of their constitutional right to a fair trial. These
arguments should be rejected.
A. Relevant Facts
The Government delivered its main summation on July
16, 2007 (Tr. 1616-1711), and delivered its rebuttal
summation on July 18, 2007. (Tr. 1947-94). The Govern-
ment’s extensive arguments spanned nearly 150 transcript
pages, but Nadirashvili and Spies complain about only a
handful of remarks.
With respect to Nadirashvili, the only defendant who
testified during the trial, the Government argued in its
main summation as follows:
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114
Ladies and gentlemen, the only charade that
you’ve seen with respect to Mr. Nadirashvili
was his testimony on the witness stand. That
was the charade. He didn’t want to get
Levan involved. “I did it to preserve my
friendship with Solomonyan. I didn’t want
anything to do with guns.” That story was
the charade.
(Tr. 1660-61). No defendant objected to this argument.
During its rebuttal summation, the Government stated:
Now, you recall [Nadirashvili] testified in
this courtroom, and I submit to you he told
you a string of lies about his role in this
conspiracy.
Mr. Soloway [Nadirashvili’s counsel] came
up and he told you that this is about human-
ity, this is about human nature, this is about
being in the moment. And he said you have
been at work, folks, and somebody comes
up who is a friend of yours and says, I really
want that promotion and you know the boss,
can you go speak to him about it? Mr.
Soloway said, Well, that puts you in a very
rough spot. You don’t want to upset your
friend, but you also don’t want to go tell the
boss that that knucklehead who is talking to
you wants the promotion. But he didn’t take
his analogy to the next obvious step and
apply it here. Because he suggested that the
call, the initial call from Artur Solomonyan
Page 142
115
to Nikolai Nadirashvili was that knuckle-
head guy looking for the promotion. But
what he didn’t tell you is that what his client
did was leave his office and run as fast as he
could down to the boss’ office and ask the
boss to give that guy a promotion. How do
you know that? Because if you look at the
call immediately after Artur Solomonyan
calls Nikolai Nadirashvili, you know what
Nadirashvili did. He picked up the phone
and he called Levan Chvelidze, and he told
him that Solomonyan was looking for guns
and can you help him? That’s what he told
him. And he continued at it.
Mr. Soloway didn’t even mention the fact
that after all these series of calls, and after,
as he says, this was shut down for the week-
end, you know, everything was hunky-dory
again. Well, you know otherwise. You know
that Mr. Nadirashvili, he went out in Brigh-
ton trying to find guns for Artur
Solomonyan. And you know that because
it’s in the recording, and you know it be-
cause he told you on the witness stand. But
he told you, They weren’t gun dealers I
went to see.
MR. SOLOWAY: Objection. He didn’t tell
anybody that he went to Brighton. It’s the
jury’s recollection that controls.
THE COURT: It’s in the transcript.
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116
[THE PROSECUTOR:] . . . He told you
while he was on the witness stand that those
folks at Brighton, they weren’t gun dealers,
they were just criminal types, and he went
out to try to solicit some guns from them.
If you take Mr. Soloway’s analogy to the
logical conclusion, that’s a guy not only
going to the boss’ office, he is out looking
for a job for his friend in some supervisory
spot.
It doesn’t match up to the evidence. It’s a
nice analogy, but it doesn’t match up to the
evidence. What the evidence shows here is
that Mr. Nadirashvili got a call from Artur
Solomonyan and he acted immediately.
(Tr. 1975-77). Except as quoted above, no defendant
objected to this argument.
Finally, as to Spies, the Government argued in its
summation:
The first thing I want to talk to you about is
the defendant Solomonyan and defendant
Spies’ entrapment claim.
You may have noticed that this word “en-
trapment,” it was uttered for the first time
during the summations of Mr. Fasulo
[Solomonyan’s counsel] and Mr. Burke
[Spies’ counsel].
MR. FASULO: Objection.
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117
THE COURT: Overruled.
[THE PROSECUTOR:] That was the first
you heard those words being used, entrap-
ment. Mr. Burke never mentioned the word
“entrapment” during his opening statement.
Mr. Ginsberg [Solomonyan’s counsel] never
used the word “entrapment” during his
opening statement.
MR. FASULO: Objection.
THE COURT: Overruled.
[THE PROSECUTOR:] Now, these defen-
dants, they didn’t even have to make an
opening statement. They could have sat
right down there. But they did. And they
previewed for you what they said the evi-
dence would show. Not once during either
of those opening statements did you hear the
word “entrapment.”
MR.SCHWARZ: Objection, again, your
Honor.
[THE PROSECUTOR:] That changed at the
end of the case, didn’t it? Mr. Fasulo and
Mr. Burke, they couldn’t say “entrapment”
enough. As soon as Mr. Fasulo got up to
this podium he told you about how his client
was entrapped.
MR. FASULO: Objection, Judge.
THE COURT: The objection is noted.
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118
[THE PROSECUTOR:] . . . He finished
with the exact same argument. Same thing
for Mr. Burke, he started with it and he
finished with it. He went even further. He
told you Mr. Spies was induced, he was
entrapped, he was pressured, he was pushed.
They had 2,000 phone calls. He said, you
can’t do that. You can’t do that. That’s why
he’s not guilty.
What happened between the opening state-
ment about a month ago and defense coun-
sel’s summations on Monday?
The evidence came in. That’s what hap-
pened. The overwhelming evidence that
Arthur Solomonyan and Christiaan Spies
committed the crimes that are charged in
this indictment. There was the recorded
evidence, transcripts of which are in your
book, recordings with Kelly Davis, record-
ings between Solomonyan and Spies dis-
cussing their criminal activities, recordings
with other criminal associates people like
defendants Ioseb Kharbadze, Nikolai
Nadirashvili, Ioseb Chvelidze, and Dimitriy
Vorobeychik, just to name a few.
[The Government] went through all those
recordings with you during [its] main sum-
mation in great detail, and I am not going to
run through them all the again, because you
have heard, you’ve sat and listened to the
evidence and you’ve listened to the summa-
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119
tions, and I’m confident that you are aware
of that evidence.
(Tr. 1950-51).
At the conclusion of the Government’s rebuttal, out of
the hearing of the jury, Solomonyan repeated his objection
to the Government’s remarks, and moved for a mistrial or,
in the alternative, for a curative jury instruction. (Tr. 1995-
97). Spies also joined in those motions. (Tr. 1997-99). The
Court denied the motion for a mistrial, but allowed defense
counsel to submit a proposed curative instruction.
(Tr. 2004, 2008).
The following morning, the District Court indicated
that it would issue a curative instruction. (Tr. 2012-14).
Ultimately, the District Court charged the jury as follows:
In determining the facts, you must rely upon
your recollection of the evidence. None of
what the lawyers have said in their opening
statements, their objections, or their ques-
tions during the trial is evidence. And coun-
sel’s arguments at the close of trial are not
evidence. You may consider such arguments
based on evidence if you find them persua-
sive. Ignore arguments that are not based on
evidence. For example, during its rebuttal
summation, the government commented on
the fact that defendants Solomonyan and
Spies did not raise the entrapment defense
in their opening statements. Keep in mind
that defendants are under no obligation to
raise a defense in opening statements or to
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produce any evidence during the trial. So in
considering the defense of entrapment, for
example, you should consider only the
evidence before you and the instructions
that I will give you on the defense of entrap-
ment later on during these instructions.
(Tr. 2018-19).
B. Applicable Law
In summation, a prosecutor “is ordinarily entitled to
respond to the evidence, issues, and hypotheses pro-
pounded by the defense,” United States v. Marrale, 695
F.2d 658, 667 (2d Cir. 1982), and in so doing, to be “blunt
and to the point,” United States v. Gottlieb, 493 F.2d 987,
994 (2d Cir. 1974); see also United States v. Simmons, 923
F.2d 934, 955 (2d Cir. 1991). This is particularly true
where a defendant’s closing has “opened the door” to the
prosecutor’s comments on rebuttal. United States v.
Rivera, 971 F.2d 876, 883 (2d Cir. 1992); see also United
States v. Robinson, 485 U.S. 25, 27-28 & n.2, 32-33
(1988).
A defendant challenging a conviction based on com-
ments in a prosecutor’s summation “must point to egre-
gious misconduct.” United States v. Coriaty, 300 F.3d
244, 255 (2d Cir. 2002) (internal quotation marks omit-
ted). Moreover, “[i]mproper summation statements violate
a defendant’s due process rights only if they cause sub-
stantial prejudice to the defendant.” United States v.
Edwards, 342 F.3d 168, 181 (2d Cir. 2003) (internal
quotations and citations omitted); see also United States v.
Bautista, 23 F.3d 726, 732 (2d Cir. 1994). “‘Inappropriate
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prosecutorial comments, standing alone, would not justify
a reviewing court to reverse a criminal conviction obtained
in an otherwise fair proceeding.’” United States v.
Melendez, 57 F.3d 238, 241 (2d Cir. 1995) (quoting
United States v. Young, 470 U.S. 1, 11-12 (1985)).
In sum, this Court “will reverse only upon a showing
(1) that the prosecutor’s statements were improper and (2)
that the remarks, taken in the context of the entire trial,
resulted in substantial prejudice.” United States v. Thomas,
377 F.3d 232, 244 (2d Cir. 2004) (internal quotation marks
omitted). In evaluating whether a prosecutor’s remarks
warrant reversal, this Court examines the severity of the
remarks, the measures adopted to cure any harm they
caused, and the certainty of conviction absent the improper
remarks. See United States v. Melendez, 57 F.3d at 241;
United States v. Thompson, 29 F.3d 62, 66 (2d Cir. 1994);
United States v. Espinal, 981 F.2d 664, 666 (2d Cir. 1992).
In applying these factors, the Court has recognized that
“the misconduct alleged must be so severe and so signifi-
cant as to result in the denial of [the defendant’s] right to
a fair trial.” United States v. Locascio, 6 F.3d 924, 945 (2d
Cir. 1993); see also United States v. Rodriguez, 968 F.2d
139, 142 (2d Cir. 1992) (“It is a ‘rare case’ in which
improper comments in a prosecutor’s summation are so
prejudicial that a new trial is required.” (citation omitted)).
C. Discussion
None of the remarks complained of here amount to
“egregious misconduct,” nor did they cause “substantial
prejudice” — particularly in light of the District Court’s
instructions to the jury.
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With respect to the arguments in the Government’s
main summation that Nadirashvili’s testimony was part of
a “charade,” and included a “string of lies,” Nadirashvili
cannot demonstrate that the Government’s conduct
“amounted to flagrant abuse.” See United States v.
Farmer, 583 F.3d 131, 147 (2d Cir. 2009) (holding that
where a “defendant did not object to the remarks at trial,
reversal is warranted only where the remarks amounted to
a flagrant abuse” (internal quotation marks omitted)).
Indeed, this Court has frequently recognized that during
summations, a prosecutor may characterize a defendant’s
testimony as “lies,” so long as done appropriately. See,
e.g., United States v. Resto, 824 F.2d 210, 212 (2d Cir.
1987) (holding prosecutor’s statement that defendant’s
testimony was “out-and-out lies” not improper because not
excessive or inflammatory); United States v. Peterson, 808
F.2d 969, 977 (2d Cir.1987) (“Use of the words ‘liar’ and
‘lie’ to characterize disputed testimony when the witness’s
credibility is clearly in issue is ordinarily not improper
unless such use is excessive or is likely to be inflamma-
tory.”); see also Thomas, 377 F.3d at 245 (declining to
address propriety of prosecutor’s comment that defendant
“lied” because it was not prejudicial). Here, with
Nadirashvili’s credibility very much in issue, the Govern-
ment’s comment was fair, and certainly not “flagrant
abuse.”
Nadirashvili also complains that the Government
improperly characterized his testimony with respect to
whether he ever went to Brighton Beach to find guns for
Solomonyan. (Nadirashvili Br. 59). Any prejudice from
this comment was more than remedied both by counsel’s
immediate objection that “[i]t’s the jury’s recollection that
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controls” (Tr. 1976) and by the Court’s subsequent
instruction that “[i]n determining the facts, you must rely
upon your recollection of the evidence. None of what the
lawyers have said in their opening statements, their
objections, or their questions during the trial is evidence.
And counsel’s arguments at the close of trial are not
evidence.” (Tr. 2018). Accordingly, this stray statement
provides no basis for disturbing the jury’s verdict.
Similarly, contrary to Spies’s argument, the Govern-
ment’s comments regarding the defendants’ failure to
discuss an entrapment defense during opening statements
does not warrant a new trial. Even if the Government’s
comments were not appropriate, any conceivable prejudice
was cured by the District Court’s subsequent curative
instruction. (Tr. 2018-19). Taken as a whole, there is
simply no way to conclude that Spies was denied a fair
trial as a result of the government’s rebuttal summation.
POINT IX
The Jury Instructions Were Proper
Spies argues that the District Court improperly in-
structed the jury in two respects: by telling them that “law
enforcement techniques are not the jury’s concern,” and by
providing an example of circumstantial evidence: the
traditional “wet raincoat” example. In addition,
Kharabadze argues that the District Court erroneously
declined to instruct the jury that, to find a defendant guilty
of Count Two, the jury was required to find that the
defendant “was substantially motivated by the expectation
that he would receive financial compensation or some
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other type of reward or benefit.” These arguments are meritless.
A. Relevant Facts
The District Court held a charge conference without a
court reporter present on Friday, July 13, 2007. On July
16, 2007, the Court held a second charge conference at
which the parties restated on the record, and in abbreviated
form, the objections that they had raised at the July 13
conference. (Tr. 1573-88).
At the June 16 charge conference, Spies and
Chvelidze, objected to the inclusion of the following
sentence in the Court’s jury instructions: “Law enforce-
ment techniques are not your concern.” (Tr. 1577-78). The
District Court overruled this objection and ultimately
instructed the jury as follows:
During the trial you have heard testimony of
witnesses and argument by counsel that the
government did not utilize certain investiga-
tive techniques. You are instructed that
there is no legal requirement that the gov-
ernment use any of those specific investiga-
tive techniques to prove its case. Law en-
forcement techniques are not the jury’s
concern. Your concern, as I have said, is to
determine whether or not on the evidence or
lack of evidence a defendant’s guilt has
been proved beyond a reasonable doubt.
(Tr. 2039-40).
At the June 16 charge conference, Spies also objected
to the District Court’s use of the “wet raincoat” example
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125
to illustrate the concept of circumstantial evidence, at least
without the presence of a second example. (Tr. 1574-75).
The District Court overruled this objection and ultimately
instructed the jury as follows:
There are two types of evidence which you
may properly use in deciding whether a
defendant is guilty or not guilty: Direct and
circumstantial evidence. Direct evidence is
evidence that proves a disputed fact directly.
For example, where a witness testifies as to
what he or she saw, heard or observed, that
is called direct evidence.
Circumstantial evidence, in contrast, is
evidence that tends to prove a disputed fact
by proof of other facts. To give a simple
example that is often used in the courthouse,
suppose that when you came into the court-
house today the sun was shining and it was
a nice day, but that the courtroom blinds
were drawn and you could not look outside.
Then later, as you were sitting there, some-
one walked in with a dripping wet umbrella
and, soon after, someone else walked in
with a dripping wet raincoat. Now, on our
assumed facts, you cannot look outside of
the courtroom and you cannot see whether it
is raining or not. So you have no direct
evidence of that. But, on the combination of
the facts about the umbrella and the rain-
coat, it would be reasonable for you to
conclude that it had been raining.
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(Tr. 2023-24).
Finally, the District Court declined to give
Kharabadze’s proposed instruction that the jury could
convict him of Count Two only if it found that he “was
substantially motivated by the expectation that he would
receive financial compensation or some other type of
reward or benefit.” (Kharabadze A. 353). Instead, the
District Court the instructed the jury on the elements of
“brokering” as follows:
There are four essential elements of the
crime of brokering with respect to the im-
port or transfer of foreign defense articles,
each of which the government must prove
beyond a reasonable doubt:
First: That the defendant engaged in the
business of brokering activities with respect
to the import or transfer of a foreign defense
article;
Second: That the foreign defense article was
a non-United States defense article of a
nature described in the United States Muni-
tions List;
Third: That the defendant engaged in such
brokering without obtaining a license or
written approval from the state department;
and,
Fourth: That the defendant acted willfully.
The federal regulations that accompany this
statute further define the terms contained in
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the statute and the elements of the crime. I
will now describe for you five of the accom-
panying regulations referred to in the indict-
ment and define some of the terms that are
used in the elements above.
(Tr. 2045-46).
Among the definitions that the Court then gave to the jury
were the following:
The term “brokering activities” means
acting as a broker, and includes the financ-
ing, transportation, freight forwarding, or
taking of any other action that facilitates the
manufacture, export, or import of a defense
article or defense service, irrespective of its
origin.
A “broker” means any person who acts as
an agent for others in negotiating or arrang-
ing contracts, purchases, sales, or transfers
of defense articles or defense services in
return for a fee, commission, or other con-
sideration.
(Tr. 2048-49).
B. Applicable Law
A defendant challenging a jury instruction on appeal
faces a heavy burden: he must establish both that he
requested a charge that “accurately represented the law in
every respect” and that the charge delivered was erroneous
and caused him prejudice. United States v. Wilkerson, 361
F.3d 717, 732 (2d Cir. 2004); see also United States v.
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White, 552 F.3d 240, 246 (2d Cir. 2009) (“To secure
reversal on a flawed jury instruction, a defendant must
demonstrate both error and ensuing prejudice.”) (quoting
United States v. Quinones, 511 F.3d 289, 313-14 (2d Cir.
2007)); United States v. Mulder, 273 F.3d 91, 105 (2d Cir.
2001); United States v. Pujana-Mena, 949 F.2d 24, 27 (2d
Cir. 1991).
In reviewing jury instructions, this Court does not look
only to the particular words or phrases questioned by the
defendant, but must “‘review the instructions as a whole to
see if the entire charge delivered a correct interpretation of
the law.’” United States v. Carr, 880 F.2d 1550, 1555 (2d
Cir. 1989) (quoting California v. Brown, 479 U.S. 538,
541 (1987)); United States v. Mulder, 273 F.3d at 105
(court must “look to ‘the charge as a whole’ to determine
whether it ‘adequately reflected the law’ and ‘would have
conveyed to a reasonable juror’ the relevant law”) (quoting
United States v. Jones, 30 F.3d 276, 284 (2d Cir. 1994)).
Although this Court reviews a preserved claim of error
in jury instructions de novo, it will reverse a conviction
“only where appellant can show that, viewing the charge
as a whole, there was a prejudicial error.” United States v.
Tropeano, 252 F.3d 653, 657-58 (2d Cir. 2001).
C. Discussion
1. Spies’s Challenges
As Spies readily acknowledges, the portions of the
District Court’s charge to which he objects are commonly
used by district courts. (See Spies Br. 27, 31-32). Indeed,
these instructions properly state the law and could not have
caused prejudicial error.
Page 156
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Contrary to Spies’s arguments, the jury charge, viewed
as a whole, did not undermine Spies’s entrapment defense.
(Spies Br. 29). The District Court provided a lengthy
entrapment instruction to the jury (Tr. 2109-11), conclud-
ing with the following instruction:
If you find beyond a reasonable doubt that
the defendant was predisposed to commit
the offenses charged in the indictment, then
you should find that the defendant was not
the victim of entrapment. On the other hand,
(1) if you find that a government agent
initiated the criminal acts charged in the
indictment, and (2) if you have a reasonable
doubt as to whether the defendant was
predisposed to commit the criminal acts
charged in the indictment, you must acquit
the defendant.
(Tr. 2111). This entrapment instruction is completely
consistent with the “law enforcement techniques instruc-
tion,” which advised the jury that “there is no legal
requirement that the government use any . . . specific
investigative techniques to prove its case.” (Tr. 2040). In
light of the detailed entrapment charge, it is inconceivable
that a juror could have been confused so as to believe that
the instruction that “law enforcement techniques are not
the jury’s concern” meant that they were somehow pre-
cluded from examining “the behavior of the Government
and its informants” in the context of entrapment. (Spies
Br. 29). To the contrary, the District Court specifically
instructed the jury that they had to determine, among other
things whether “a government agent initiated the criminal
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acts charged in the indictment.” (Tr. 2111). The “law
enforcement techniques charge” was proper and not
misleading.
Likewise, Spies challenge to a standard circumstantial
evidence charge is meritless. Spies argues that in the “wet
raincoat” example provided by the court, “the inference
drawn from the circumstantial evidence is unassailable and
the ensuing conclusion is unavoidable.” (Spies Br. 32).
This is simply incorrect. The fact that one may infer that it
is raining because “someone walked in with a dripping wet
umbrella and, soon after, someone else walked in with a
dripping wet raincoat” says nothing about what one may
infer from other facts. Indeed, the District Court also
instructed the jury
An inference is not a suspicion or a guess. It
is a reasoned, logical decision to conclude
that a disputed fact exists on the basis of
another fact that you know exists. There are
times when different inferences may be
drawn from facts whether by direct or cir-
cumstantial evidence. The government may
ask you to draw one set of inferences, while
the defendants may ask you to draw another.
It is for you and you alone to decide what
inferences you will draw.
(Tr. 2024). Thus, the “wet raincoat” instruction provides
no basis for disturbing the jury’s verdict.
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2. Kharabadze’s Challenge to the
Brokering Instruction
Kharabadze’s contends that the District Court erred
when it “did not advise the jury that the crime [of
brokering] required proof of two different states of mind,
i.e., (1) willfulness and (2) a motive to receive a fee,
compensation or some other type of reward or benefit.”
(Kharabadze Br. 58).
The argument fails. After the District Court listed the
four elements of the offense, including the element “[t]hat
the defendant engaged in the business of brokering
activities with respect to the import or transfer of a foreign
defense article” (Tr. 2045), it instructed the jury that the
elements were “further define[d]” in the federal regula-
tions and then proceeded to “define some of the terms that
are used in the elements.” (Tr. 2046). Namely, the Court
further defined “brokering activities” to mean “acting as
a broker” and further defined a “broker” as “any person
who acts as an agent for others in negotiating or arranging
contracts, purchases, sales, or transfers of defense articles
or defense services in return for a fee, commission, or
other consideration.” (Tr. 2048-49) (emphasis added).
Moreover, the District Court instructed the jury that it had
to find, as an element, “[t]hat the defendant acted will-
fully.” (Tr. 2046). Thus, when read as a whole, the jury
was instructed correctly, and in accordance with the
regulations. Kharabadze’s proposed instruction below*
As set forth in Point I above, the AECA regulations*
define “brokering activities” to mean “acting as a broker
as defined in § 129.2(a)” and “includes the financing,
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132
was properly rejected because it attempted to graft a
requirement that a defendant was “substantially moti-
vated” by the expectation of a reward (Kharabadze A. 353)
(emphasis added), whereas the regulations include no such
requirement.
POINT X
The Challenges to the District Court’s
Guidelines Calculations Should Be Rejected
Solomonyan, Kharabadze, and Nadirashvili challenge
certain aspects of the District Court’s Sentencing Guide-
lines calculations. These arguments are without merit.
Moreover, Nadirashvili’s challenge is moot, as he has
completed serving his term of imprisonment. In addition,
in light of the fact that Solomonyan received a sentence
that was well below his Guidelines range, any errors in
applying certain offense level enhancements would have
been harmless.
transportation, freight forwarding, or taking of any other
action that facilitates the manufacture, export, or import of
a defense article or defense service, irrespective of its
origin.” 22 C.F.R. § 129.2(b). The regulations define
“broker” to mean “any person who acts as an agent for
others in negotiating or arranging contracts, purchases,
sales or transfers of defense articles or defense services in
return for a fee, commission, or other consideration.” 22
C.F.R. § 129.2(a).
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133
A. Relevant Facts
At the sentencing hearings of Kharabadze,
Solomonyan, and Spies, the District Court made detailed
rulings concerning the application of the Guidelines. As an
initial matter, the District Court found the Overseas Arms
Trafficking Offenses — Counts One and Two — should
be grouped pursuant to U.S.S.G. § 3D1.2. (Kharabadze A.
651; Solomonyan A. 530; Spies A. 74). The District Court
then proceeded to calculate the offense levels for Counts
One and Two. With regard to Count Two, the District
Court found that the total offense level was 26, pursuant to
U.S.S.G. § 2M5.2(a)(1). (Kharabadze A. 651; Solomonyan
A. 530; Spies A. 74).
Because Count One of the Indictment charged a
conspiracy with two objects — (1) engaging in the busi-
ness of brokering activities with respect to the import and
transfer of foreign defense articles, and (2) conspiracy to
transport a machinegun or a destructive device — the
District Court applied U.S.S.G. § 1B1.2(d), which pro-
vides:
A conviction on a count charging a conspir-
acy to commit more than one offense shall
be treated as if the defendant had been
convicted on a separate count of conspiracy
for each offense that the defendant con-
spired to commit.
U.S.S.G. § 1B1.2(d). Because, in this case, the jury verdict
did not establish which of the two objects was the object
of the conspiracy charged in Count One, the District Court
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134
applied Application Note 4 to U.S.S.G. § 1B1.2(d), which
reads:
Particular care must be taken in applying
[U.S.S.G. § 1B1.2(d)] because there are
cases in which the verdict . . . does not
establish which offense(s) was the object of
the conspiracy. In such cases, [U.S.S.G.
§ 1B1.2(d)] should only be applied with
respect to an object offense alleged in the
conspiracy count if the court, were it sitting
as trier of fact, would convict the defendant
of conspiring to commit that object offense.
U.S.S.G. § 1B1.2(d) (n.4). Applying this standard, the
District Court then found beyond a reasonable doubt that,
were it sitting as trier of fact, it would convict Kharabadze,
Solomonyan and Spies of conspiring to commit the second
object of Count One — that is, conspiring to transport or
possess a machinegun or destructive device. (Kharabadze
A. 651; Solomonyan A. 530; Spies A. 74-75).
Accordingly, with respect to the second object of
Count One, the District Court applied U.S.S.G. § 2K2.1 to
find the base offense levels for Kharabadze, Solomonyan,
and Spies. In the case of Kharabadze, the District Court
found that the base offense level was 18, pursuant to
U.S.S.G. § 2K2.1(a)(5), because the offense involved a
machinegun or destructive device. (Kharabadze A. 651).
In the case of Solomonyan and Spies, the District Court
found that the base offense level was 20, pursuant to
U.S.S.G. § 2K2.1(a)(4)(B), because the offense involved
a machinegun or destructive device and Solomonyan and
Spies were prohibited persons (illegal aliens) at the time
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135
they committed the offense. (Solomonyan A. 530; Spies A.
74).
The District Court further found by a preponderance of
the evidence with respect to Kharabadze, Solomonyan, and
Spies that a 15-level enhancement applied because the
offense involved a destructive device that is a portable
rocket, a missile, or a device for use in launching a
portable rocket or missile, pursuant to U.S.S.G.
§ 2K2.1(b)(3)(A). (Kharabadze A. 653; Solomonyan A.
531; Spies A. 75). The Court ruled, with respect to
Kharabadze, that the application of the 15-level enhance-
ment, which became effective on November 1, 2004,
would not constitute an ex post facto application of a
Guidelines provision because Kharabadze was still a
member of the conspiracy as of January 7, 2005.
(Kharabadze A. 653-54).
The District Court also applied enhancements based on
the number of weapons involved in the conduct of
Kharabadze, Solomonyan, and Spies. With respect to
Kharabadze, the Court found that the offense involved at
least five firearms and that a two-level enhancement was
applicable pursuant to U.S.S.G. § 2K2.1(b)(1)(A).
(Kharabadze A. 655). With respect to Solomonyan and
Spies, the Court found that the offense involved at least
200 firearms and that a ten-level enhancement was appli-
cable pursuant to U.S.S.G. § 2K2.1(b)(1)(E). (Solomonyan
A. 531; Spies A. 75).
The District Court determined that, with respect to
Kharabadze, Solomonyan, and Spies, there should be a
three-level reduction in the offense level under U.S.S.G.
2X1.1(b)(2) because they were not about to complete all
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of the acts necessary for the offense at the time they were
arrested in March 2005. (Kharabadze A. 656; Solomonyan
A. 532; Spies A. 76).
The District Court also increased the offense levels of
Solomonyan and Spies based on their roles in the offense.
The District Court increased Solomonyan’s offense level
by four levels on the grounds that he was an organizer or
leader of criminal activity that involved five or more
participants and was otherwise extensive, pursuant to
U.S.S.G. § 3B1.1(a). (Solomonyan App. 536). The District
Court increased Spies’s offense level by three levels on the
grounds that he was a manager or supervisor (but not an
organizer or leader) of criminal activity that involved five
or more participants and was otherwise extensive, pursuant
to U.S.S.G. § 3B1.1(b). (Spies A. 75-76).
Finally, the District Court ruled that the same Guide-
lines calculation could be reached with respect to
Kharabadze, Solomonyan, and Spies based on the “rele-
vant conduct” analysis of U.S.S.G. § 1B1.3(a)(2).
(Kharabadze A. 656; Solomonyan A. 532-33; Spies A.
76).
Accordingly, the District Court determined that the
total offense levels of Kharabadze, Solomonyan, and Spies
were 32, 48, and 45, respectively. (Kharabadze A. 656;
Solomonyan A. 533, 536; Spies A. 76). Based on a
criminal history category of I for each, the Court found
that the Guidelines ranges of Kharabadze, Solomonyan,
and Spies were 121 to 151 months’ imprisonment
(Kharabadze A. 656), life imprisonment (Solomonyan A.
533), and life imprisonment (Spies A. 76), respectively.
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Based on the factors of Title 18, United States Code,
Section 3553(a), the District Court sentenced Kharabadze,
Solomonyan and Spies to non-Guidelines sentences of 108
months’ imprisonment, 264 months’ imprisonment, and
240 months’ imprisonment respectively, to be followed by
three years’ supervised release.
B. Applicable Law
1. Sentencing Review Generally
This Court’s review of a district court’s sentence
“encompasses two components: procedural review and
substantive review.” United States v. Cavera, 550 F.3d
180, 189 (2d Cir. 2008). A district court “commits proce-
dural error where it fails to calculate the Guidelines range
(unless omission of the calculation is justified), makes a
mistake in its Guidelines calculation, [] treats the Guide-
lines as mandatory[,] . . . does not consider the § 3553(a)
factors, or rests its sentence on a clearly erroneous finding
of fact.” Id. at 190 (internal citations omitted); see also
Gall v. United States, 552 U.S. 38, 51 (2007) (procedural
error includes “failing to calculate (or improperly calculat-
ing) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence —
including an explanation for any deviation from the
Guidelines range”).
If this Court determines that there was no procedural
error, it “should then consider the substantive reasonable-
ness of the sentence imposed under an abuse-of-discretion
standard.” Gall v. United States, 552 U.S. at 51. In
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138
conducting such review, this Court must “take into
account the totality of the circumstances, giving due
deference to the sentencing judge’s exercise of discretion,
and bearing in mind the institutional advantages of district
courts.” Cavera, 550 F.3d at 190. This Court cannot
“substitute [its] own judgment for the district court’s on
the question of what is sufficient to meet the § 3553(a)
considerations in any particular case,” and should “set
aside a district court’s substantive determination only in
exceptional cases where the trial court’s decision ‘cannot
be located within the range of permissible decisions.’”
Cavera, 550 F.3d at 189 (emphasis in original) (quoting
United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
With respect to the various factors that must be consid-
ered at sentencing, this Court does not require the district
court to have engaged in the “formulaic or ritualized
burden[]” of performing “‘robotic incantations’ that [it]
has considered each of the § 3553(a) factors.” Id. at 193;
see also United States v. Fleming, 397 F.3d 95, 100 (2d
Cir. 2005) (“As long as the judge is aware of both the
statutory requirements and the sentencing range or ranges
that are arguably applicable, and nothing in the record
indicates misunderstanding about such materials or
misperception about their relevance, we will accept that
the requisite consideration has occurred.”). Rather, this
Court requires only that the district court provide “a brief
statement of reasons” for the sentence imposed, demon-
strating that “it has ‘considered the parties’ arguments’ and
that it has a ‘reasoned basis for exercising [its] own legal
decisionmaking authority.’” United States v. Cavera, 550
F.3d at 193 (quoting Rita v. United States, 551 U.S. 338,
356 (2007)). The weight that the district court puts on a
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particular factor need not be the weight that this Court
would give the factor, so long as “the factor, as explained
by the district court, can bear the weight assigned it under
the totality of circumstances in the case.” Id. at 191.
Finally, with respect to the role of the Sentencing
Guidelines as a factor at sentencing, this Court neither
“presume[s] that a Guidelines-range sentence is reason-
able,” nor that “a non-Guidelines sentence is unreason-
able.” United States v. Cavera, 550 F.3d at 190; see also
Gall, 552 U.S. at 49 (reviewing court may not apply
“heightened standard of review to sentences outside the
Guidelines range”). However, a district judge who im-
poses a non-Guidelines sentence “should say why she is
doing so, bearing in mind . . . that ‘a major departure [from
the Guidelines] should be supported by a more significant
justification than a minor one.’” United States v. Cavera,
550 F.3d at 193 (quoting Gall, 552 U.S. at 50). Ultimately,
once this Court is “sure that the sentence resulted from the
reasoned exercise of discretion, [it] must defer heavily to
the expertise of district judges.” Id.
2. Review of Guidelines Calculations
This Court “reviews issues of law de novo, issues of
fact under the clearly erroneous standard, mixed questions
of law and fact either de novo or under the clearly errone-
ous standard depending on whether the question is pre-
dominantly legal or factual, and exercises of discretion for
abuse thereof.” United States v. Thorn, 446 F.3d 378, 387
(2d Cir. 2006) (citing United States v. Selioutsky, 409 F.3d
114, 119 (2d Cir. 2005)). Thus, in determining the appro-
priate standard of review for a district court’s application
of the Guidelines to the specific facts of a case, [this
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Court] follow[s] an “either/or approach,” adopting a de
novo standard of review when the district court’s applica-
tion determination was primarily legal in nature, and
adopting a “clear error” approach when the determination
was primarily factual. United States v. Gotti, 459 F.3d
296, 349 (2d Cir. 2006) (citing United States v. Vasquez,
389 F.3d 65, 75 (2d Cir. 2004)). A district court’s findings
relating to Guidelines calculations are based on a prepon-
derance of the evidence. United States v. Garcia, 413 F.3d
201, 220 (2d Cir. 2005).
B. Discussion
1. The District Court Properly Applied
U.S.S.G. § 2X1.1
Solomonyan argues that a remand is required because
the District Court made its findings “by a preponderance
of the evidence and not upon facts found to have been
established with reasonable certainty, as required by
U.S.S.G. § 2X1.1.” (Solomonyan Br. 26). Solomonyan is
mistaken.
Section 2X1.1(a) provides that the base level for a
conspiracy is the “base offense level from the guideline for
the substantive offense, plus any adjustments from such
guideline for any intended offense conduct that can be
established with reasonable certainty.” U.S.S.G. § 2X1.1.
Application Note 2 to § 2X1.1 explains that although the
base offense level will be the same as that for the substan-
tive offense:
[T]he only specific offense characteristics
from the guideline for the substantive of-
fense that apply are those that are deter-
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mined to have been specifically intended or
actually occurred. Speculative specific
offense characteristics will not be applied.
For example, if two defendants are arrested
during the conspiratorial stage of planning
an armed bank robbery, the offense level
ordinarily would not include aggravating
factors regarding possible injury to others,
hostage taking, discharge of a weapon, or
obtaining a large sum of money, because
such factors would be speculative. The
offense level would simply reflect the level
applicable to robbery of a financial institu-
tion, with the enhancement for possession of
a weapon. If it was established that the
defendants actually intended to physically
restrain the teller, the specific offense char-
acteristic for physical restraint would be
added. In an attempted theft, the value of
the items that the defendant attempted to
steal would be considered.
U.S.S.G. § 2X1.1, comment. (n.2).
In United States v. Velez, 357 F.3d 239 (2d Cir. 2004),
this Court made clear that the preponderance of the
evidence standard should be applied to determine factual
issues at sentencing, even under Section 2X1.1. As this
Court explained in reviewing a ruling concerning the
amount of funds that defendants in a conspiracy intended
to obtain, a district court’s findings “need be made only by
a preponderance of the evidence” in order to find a
specific intent to cause a particular loss. United States v.
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Velez, 357 F.3d at 243; see also United States v. Rosa, 17
F.3d 1531, 1550 (2d Cir. 1994). Accordingly,
Solomonyan’s claim that a “reasonable certainty” finding
“requires something more than a mere preponderance of
the evidence” (Solomonyan Br. 27) is contrary to the law
of this Circuit. Notably, the district court decisions on
which Solomonyan relies (Solomonyan Br. 28) predate
this Court’s decision in Velez.
2. The District Court Properly Applied
U.S.S.G. § 2K2.1 To Determine the
Base Offense Level for Count One
Kharabaze challenges the District Court’s application
of U.S.S.G. § 2K2.1 to determine the base offense level
for the conspiracy charged in Count One. This argument
should be rejected. The District Court properly applied
Section 2K2.1, because the Court found beyond a reason-
able doubt that Solomonyan, Spies and Kharabaze con-
spired to transport or possess a machinegun or destructive
device.
The District Court properly applied Application Note
4 of U.S.S.G. § 1B1.2(d) and found beyond a reasonable
doubt that Kharabadze, Solomonyan, and Spies were
guilty of conspiring to commit the second object of Count
One — transportation or possession of a machinegun or
destructive device in foreign commerce, in violation of
Title 18, United States Code, Section 922(a)(4). See
generally United States v. Malpeso, 115 F.3d 155, 167-68
(2d Cir. 1997) (holding that application note is constitu-
tional).
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The evidence at trial proved beyond a reasonable doubt
that Kharabadze, Solomonyan, and Spies conspired to
commit this offense. As an initial matter, the evidence
proved that Kharabadze, Solomonyan, and Spies lacked
the proper license to deal, possess, transport or import
machine guns or destructive devices. (Tr. 1205-07, 1300-
05, 1308). Moreover, the evidence established beyond a
reasonable doubt that the weapons involved were a
machinegun or destructive device. As described above, the
price list that Kharabadze provided to Solomonyan on
June 9, 2004 included, among other things, “hand
grenade[s]” with a “50-meter” and “200-meter range”
(Kharabadze A. 164); “stingers,” or “surface to air heat
seeking missile[s]” (Kharabadze A. 221); and “fully
automatic AK[-47]s.” (Kharabadze A. 223-24). RPGs and
Stinger missiles are destructive devices within the mean-
ing of U.S.S.G. § 2K2.1(a)(5) and 26 U.S.C. § 5845(f),
and fully automatic AK-47s constitute “machineguns”
within the meaning of U.S.S.G. § 2K2.1(a)(5) and 26
U.S.C. § 5845(b). The evidence also proved beyond a
reasonable doubt that Kharabadze, Solomonyan, and Spies
plotted to cause these weapons to move in foreign com-
merce. The weapons were to come from “Russian bases”
in Eastern Europe (Tr. 901) and to travel from Leninakan,
Armenia, to the Republic of Georgia, and then to the
United States by ship. (Tr. 381-82).
Thus, the Court properly found beyond a reasonable
doubt that Kharabadze, Solomonyan, and Spies conspired
to commit the second object of Count One. This finding
properly triggered an 18-point base offense level for
Kharabadze under U.S.S.G. § 2K2.1(a)(5), because the
offense involved a machinegun or destructive device, and
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a 20-point base offense level for Solomonyan and Spies
under U.S.S.G. § 2K2.1(a)(4)(B), because the offense
involved a machinegun or destructive device and
Solomonyan and Spies were prohibited persons (illegal
aliens) at the time they committed the offense.
3. The District Court Properly
Applied a 15-Level
Enhancement for Portable
Rocket or Missile
With respect to Kharabadze, Solomonyan, and Spies,
the District Court properly found by a preponderance of
the evidence that their offense involved “a destructive
device that is a portable rocket, a missile, or a device for
use in launching a portable rocket or a missile,” and that a
15-level enhancement was therefore applicable pursuant to
U.S.S.G. § 2K2.1(b)(3)(A). As described above,
Kharabadze, Solomonyan, and Spies conspired to transfer
RPGs, which are “high explosive antitank” warheads that
are launched under “rocket” power (Tr. 1139-40), and
Stingers, which are “single-person shoulder launched
missile[s].” (Tr. 1139). Accordingly, the Court properly
applied the fifteen level enhancement. Indeed, in light of
the overwhelming evidence that the offense involved a
destructive device, the District Court’s finding that the
offense involved a destructive device should not be
disturbed even if, as Solomonyan contends, a heightened
standard should have been applied. (Solomonyan Br. 41-
42).
Kharabadze contends that the enhancement should not
have applied to him because his conduct ended in June
2004, before the November 1, 2004 effective date of
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U.S.S.G. § 2K2.1(b)(3)(A). Kharabadze’s contention fails
because his conduct extended at least though January 7,
2005. As of that date, as the District Court found,
Kharabadze was willing to meet with Davis in furtherance
of an arms deal. (Kharabadze A. 653-54; see Tr. 1057).
In addition, it is well settled that “[t]he last date of the
offense, as alleged in the indictment, is the controlling date
for ex post facto purposes.” United States v. Broderson, 67
F.3d 452, 456 (2d Cir. 1995); see also United States v.
Fitzgerald, 232 F.3d 315, 318-19 (2d Cir. 2000) (same);
U.S.S.G. § 1B1.11, Application Note 2. Here, the comple-
tion date of the conspiracy charged in Count One and the
substantive offense charged in Count Two is March 14,
2005. Accordingly, because March 14, 2005 is the control-
ling date for ex post facto purposes, and the Guideline
became effective on November 1, 2004, the 15-point
enhancement applies to Kharabadze. Kharabadze did not
establish, at trial or at sentencing, that he withdrew from
the conspiracy before November 1, 2004. See United
States v. Geibel, 369 F.3d 682, 695 (2d Cir. 2004) (“To
withdraw from a conspiracy, a person must take some
affirmative action either by making a clean breast to the
authorities or communicating the abandonment in a
manner reasonably calculated to reach co-conspirators.”)
(quoting United States v. Jackson, 335 F.3d 170, 182 (2d
Cir. 2003)); United States v. Flaharty, 295 F.3d 182, 192
(2d Cir. 2002) (“Withdrawal is an affirmative defense, and
the defendant has the burden of showing that he performed
affirmative acts that were inconsistent with [the] object of
the conspiracy and communicated in a manner reasonably
calculated to reach co-conspirators.”) (internal quotation
marks and citations omitted). Because Kharabadze never
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withdrew from the conspiracy, he remained a member
until the conspiracy ended in March 2005, several months
after the November 1, 2004 effective date of U.S.S.G.
§ 2K2.1(b)(3)(A).
4. The District Court Properly Applied an
Enhancement Based on the Number
of Firearms
Solomonyan’s attack on the District Court’s finding
that the offense involved at least 200 firearms, and that
Solomonyan’s offense should therefore be increased by ten
levels pursuant to U.S.S.G. § 2K2.1(b)(1)(E), is equally
unfounded. As the District Court found:
The meeting and discussions on June 11,
2004 between Solomonyan, Spies, and
Davis clearly disclose an intent by the two
defendant conspirators to acquire in excess
of 200 firearms. This is starkly confirmed in
the January 28, 2005 conversation between
Solomonyan and Yeribekyan, where this is
precisely what Solomonyan asked
Yeribekyan to achieve.
(Solomonyan A. 531). This finding is not clearly errone-
ous. To the contrary, Solomonyan participated in conver-
sations with both Davis and Yeribekyan where such
quantities were discussed. (Solomonyan A. 281-82, 394).
Again, in light of the overwhelming evidence that the
offense involved at least 200 firearms, the District Court’s
finding should not be disturbed even if, as Solomonyan
contends, a heightened standard should have been applied.
(Solomonyan Br. 29).
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5. The District Court Properly Applied a
Leadership Role Enhancement
Solomonyan challenges the District Court’s application
of a four-level enhancement based on a finding that
Solomonyan was an organizer or leader of criminal
activity that involved five or more participants or was
otherwise extensive. This challenge is meritless.
Section 3B1.1(a) of the Guidelines provides for a four-
level offense level increase “[i]f the defendant was an
organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a).
In determining a defendant’s role, a sentencing court
should consider “the exercise of decision making author-
ity, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right
to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others.” U.S.S.G.
§ 3B1.1, comment. (n.4). Among the factors bearing on
whether a defendant is a “leader” are “the degree of
discretion exercised by [the defendant], the nature and
degree of his participation in planning or organizing the
offense, and the degree of control and authority exercised
over the other members of the conspiracy.” United States
v. Beaulieau, 959 F.2d 375, 379-80 (2d Cir. 1992).
To warrant an enhancement under § 3B1.1, “the
defendant need not be the manager of more than one other
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person.” United States v. Payne, 63 F.3d 1200, 1212 (2d
Cir. 1995).
Factual determinations regarding the role a defendant
played in an offense must be sustained unless clearly
erroneous. See, e.g., United States v. Ivezaj, 568 F.3d 88,
99 (2d Cir. 2009) (“We typically review a district court’s
factual findings in support of a role enhancement for clear
error.”); United States v. Hertular, 562 F.3d 433, 449 (2d
Cir. 2009) (“In general, we review a district court’s
determination that a defendant deserves a leadership
enhancement under § 3B1.1 de novo, but we review the
court’s findings of fact supporting its conclusion only for
clear error.”).
In this case, the District Court did not clearly err in
finding that Solomonyan was an organizer or leader of a
criminal activity that involved five or more participants or
was otherwise extensive. Over a 13-month period,
Solomonyan was indisputably the ringleader of both the
Overseas Arms Trafficking Conspiracy and the Domestic
Gun Trafficking Conspiracy. He recruited and directed
Kharabadze, Armen Baregamyan (Tr. 260-62, 376-82),
Artur Barseghyan (Tr. 264-66), and Spartak Yeribekyan
(Tr. 383-404) into the Overseas Arms Trafficking Con-
spiracy. For example, Solomonyan asked Kharabadze to
provide a price list of weapons (Tr. 900-02), which
Kharabadze did, and Solomonyan directed Spartak
Yeribekyan to take or cause to be taken photographs of
overstock arms in Leninakan, which Yeribekian did.
(Tr. 404-06; Kharabadze A. 342-43). With respect to the
Domestic Gun Trafficking Offenses, Solomonyan asked
Nadirashvili (Tr. 290-94, 1496-97), Chvelidze (Tr. 304-07,
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326-27), Vorobeychik (Tr. 336-40, 361-63), McQueen,
and others to help him acquire guns. It is beside the point
that, at particular points in time, Solomonyan took direc-
tion from other members of the conspiracy or was not in
total control of others. (Solomonyan Br. 45-47). An
organizer or leader need not be all powerful at all times.
Thus, the District Court properly applied the four-level
enhancement.
Solomonyan also complains that the District Court did
not specifically find that he (1) exercised control over
others, (2) had decision making authority, (3) planned the
activity, or (4) exercised discretion. (Solomonyan Br. 45).
The argument is meritless. When applying an enhancement
under the Sentencing Guidelines, the District Court need
not exhaustively parse the evidence, nor must the court
“recite any magic words to assure that [it has] applied the
appropriate standard.” United States v. Walsh, 119 F.3d
115, 121 (2d Cir. 1997) (describing obstruction of justice
enhancement). The District Court only must “make[]
specific factual findings that (i) the defendant was an
organizer or leader, and (ii) that the criminal activity
involved five or more participants, or was otherwise
extensive.” United States v. Escotto, 121 F.3d 81, 85 (2d
Cir. 1997). Here the District Court did so when it found:
I think the more appropriate category is an
organizer or leader. There are certainly more
than five people involved in the conspirato-
rial activity that was presented to the court.
If anyone was a leader in this activity, of
course the evidence clearly shows Mr.
Solomonyan was the prime leader.
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150
(Solomonyan A. 536). Thus, the District Court made
adequate findings to support its ruling that he was an
organizer or leader of criminal activity that involved five
or more participants and was otherwise extensive, pursuant
to U.S.S.G. § 3B1.1(b).
6. The District Court Properly Applied
Enhancements for Obstruction of
Justice
Nadirashvili and Solomonyan contend that, at sentenc-
ing, the District Court improperly applied a two-point
enhancement to their offense level for obstruction of
justice pursuant to U.S.S.G. § 3C1.1. The contentions are
without merit. In Nadirashvili’s case, the District Court
properly found that Nadirashvili willfully testified falsely
at trial as to a material matter when he denied that he
intended to obtain firearms for Solomonyan. In
Solomonyan’s case, the Court made the proper findings
that Solomonyan willfully testified falsely as to a material
matter when he testified that he did not intend to obtain
overseas arms for Davis.
a. The Obstruction of Justice
Enhancement
Section 3C1.1 of the Guidelines provides that:
If (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or im-
pede, the administration of justice during
the course of the investigation, prosecution,
or sentencing of the instant offense of con-
viction, and (B) the obstructive conduct
related to (I) the defendant’s offense of
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conviction and any relevant conduct; or
(ii) a closely related offense, increase the
offense level by 2 levels.
U.S.S.G. § 3C1.1. This enhancement applies specifically
to “committing . . . perjury.” U.S.S.G. § 3C1.1, comment
(n.4(b)).
With respect to perjury, the obstruction of justice
enhancement applies when a defendant testifying under
oath “gives false testimony concerning a material matter
with the willful intent to provide false testimony, rather
than as a result of confusion, mistake or faulty memory.”
United States v. Dunnigan, 507 U.S. 87, 94 (1993); accord
United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997).
An obstruction enhancement based on perjury must be
supported by a finding that “the defendant’s statements
unambiguously demonstrate an intent to obstruct.” United
States v. Kelly, 147 F.3d 172, 178-79 (2d Cir. 1998); see
also United States v. Salim, 549 F.3d 67, 74-75 (2d Cir.
2008) (noting that such findings may be made by a prepon-
derance of the evidence); United States v. Canova, 412
F.3d 331, 357 (2d Cir. 2005).
When a sentencing court imposes an obstruction
enhancement, “separate findings of fact” are not required,
so long as “a general finding of obstruction . . . tracks
those factual predicates necessary to support a finding of
perjury.” United States v. Catano-Alzate, 62 F.3d 41, 42
(2d Cir. 1995) (internal quotation marks and citations
omitted). A court is not required to render its findings
using any talismanic language, and can simply rely on the
fact that the defendant’s trial testimony was not believable.
United States v. Walsh, 119 F.3d 115, 121-22 (2d Cir.
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152
1997); see also United States v. Cawley, 48 F.3d 90, 94
(2d Cir. 1995) (upholding obstruction adjustment where a
. . . defendant gave “completely unbelievable” testimony,
notwithstanding the fact that the district court’s findings
did not specifically mention each element of perjury).
This Court has upheld the imposition of an obstruction
of justice enhancement for false testimony at a sentencing
hearing. United States v. Salim, 549 F.3d at 73.
b. Nadirashvili’s Obstruction
The District Court did not clearly err in finding that
Nadirashvili perjured himself at trial. (Nadirashvili A.
294). Nadirashvili clearly lied with respect to a material
matter — his intent at the time of his offense — when he
testified that he “didn’t want this deal to happen,” that he
did not believe Chvelidze could possibly obtain firearms,
and that he was lying to Solomonyan when he agreed to
continue to search for weapons. (Tr. 1438-43). The
evidence at trial, including Nadirashvili’s recorded
telephone conversations with Solomonyan and Chvelidze,
established that Nadirashvili did intend to obtain
machineguns for Solomonyan. Moreover, Nadirashvili’s
false testimony was willful, because it occurred under
oath, at trial, for the purpose of persuading the jury that he
was not guilty. Accordingly, Nadirashvili’s contention that
the District Court applied the two-point enhancement
merely because Nadirashvili exercised his right testify in
his defense (Nadirashvili Br. 76) is without merit.
Nadirashvili wrongly contends that the District Court
did not state its basis for the obstruction enhancement with
sufficient clarity to permit appellate review because the
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153
Court made its findings “summarily” and without citing to
“any contradictory evidence or testimony.” (Nadirashvili
Br. 78). The District Court is not required to “particularize
what part of [the defendant’s] testimony was false.”
United States v. Walsh, 119 F.3d at 121. The Court need
only “‘point to the obvious lie and find that the defendant
knowingly made a false statement on a material matter.’”
United States v. Lincecum, 220 F.3d 77, 80 (2d Cir. 2000)
(quoting United States v. Williams, 79 F.3d 334, 337-38
(2d Cir. 1996)). Because the District Court did so here
(Nadirashvili A. 294), its findings were adequate, and the
two-level enhancement with respect to Nadirashvili should
be affirmed.
c. Solomonyan’s Obstruction
The District Court did not clearly err in finding that
Solomonyan perjured himself at a sentencing hearing.
(Solomonyan A.533, 535). At his sentencing hearing,
Solomonyan lied as to his intent at the time of his offense
— a material matter — when he testified that he “did not
intend to do [an overseas arms] deal with Kelly Davis”
(Solomonyan A. 466) and that he never intended to bring
military weapons into the United States. (Solomonyan A.
486-87). The recordings and other evidence in the trial
established that Solomonyan did so intend, and the jury so
found. Moreover, Solomonyan’s testimony was willful
because it occurred under oath at a hearing before the
District Judge who was to sentence him. Plainly, this
testimony was “designed substantially affect the outcome
of the case.” Dunnigan, 507 U.S. at 95.
Solomonyan contends that the District Court’s findings
were inadequate to support the enhancement because it did
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154
not specifically find that Solomonyan’s false testimony
was “with willful intent to obstruct justice.” (Solomonyan
Br. 51). The argument fails because there is no require-
ment that the District Court “recite any magic words to
assure that [it has] applied the appropriate standard.”
Walsh, 119 F.3d at 121. The Court specifically found that
Solomonyan testified falsely at a sentencing hearing “with
respect to the essential element of intent involved in the
violations with which he was convicted.” (Solomonyan A.
533, 535). Moreover, the District Court made this finding
in response to the Government’s request that the Court
make “specific factual findings” that Solomonyan’s
testimony was false “with respect to a material matter with
willful intent.” (Solomonyan A. 535). Therefore, the
District Court’s factual findings were adequate to support
the two-point enhancement for obstruction of justice as to
Solomonyan, and the enhancement should be affirmed.
7. Harmless Error
This Court has stated that where it “identif[ies] proce-
dural error in a sentence, but the record indicates clearly
that the district court would have imposed the same
sentence in any event, the error may be deemed harmless.”
United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).
Although the sentencing judge in Jass had expressly stated
that he would have imposed the same sentence with or
without the disputed enhancement, this Court has found
Guidelines errors to be harmless where the “the record
suggest[ed] that the district court would impose the same
sentence on remand,” even when the district court did not
expressly say so. See United States v. Ramirez, 320 Fed.
Appx. 7, 13 (2d Cir. 2009) (summary order).
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155
Solomonyan’s total offense level was 48, which is five
levels above the highest offense level in the Guidelines
sentencing chart. (Solomonyan A. 533, 536). Accordingly,
even if the District Court had not applied certain offense
level enhancements that Solomonyan challenges on
appeal, his Guidelines sentencing range would have still
been life imprisonment. His sentence was far below that:
264 months’ imprisonment. Under these circumstances,
any error in applying these enhancements would have been
harmless.
POINT XI
The District Court Correctly “Stacked”
Solomonyan’s Sentences
Solomonyan argues that, because (1) there was no jury
finding that his offense involved a destructive device and
(2) the statutory maximum on Count One was five years’
imprisonment, the District Court’s sentence violated the
principle set forth in Apprendi v. New Jersey, 530 U.S.
466 (2000). This is incorrect. The District Court did not
sentence Solomonyan above the statutory maximum on
any count of conviction. Moreover, Apprendi does not
prohibit a sentencing court from imposing consecutive
sentences on separate counts of conviction to achieve a
desired sentence. Because that “stacking” of sentences is
permissible, Solomonyan’s argument should be rejected.
A. Applicable Law
For defendants convicted on multiple counts, U.S.S.G.
§ 5G1.2 explains how the sentencing court should proceed.
Except where required elsewhere in the Guidelines, a
defendant’s sentence on multiple counts should run
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156
concurrently if the count “carrying the highest statutory
maximum is adequate to achieve the total punishment,”
i.e., the combined length of the sentences. U.S.S.G.
§ 5G1.2(c). But “[i]f the sentence imposed on the count
carrying the highest statutory maximum is less than the
total punishment, then the sentence imposed on one or
more of the other counts shall run consecutively, but only
to the extent necessary to produce a combined sentence
equal to the total punishment. In all other respects, sen-
tences on all counts shall run concurrently, except to the
extent otherwise required by law.” U.S.S.G. § 5G1.2(d).
Thus, when the total punishment exceeds the statutory
maximum on any of the counts of conviction, “the Guide-
lines require that the sentences run consecutively, to the
extent necessary to achieve the ‘total punishment.’” United
States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001) (empha-
sis supplied). Put differently, this Court has recognized
that the Sentencing Guidelines specifically instruct the
district courts to stack sentences where the Guidelines
range exceeds the statutory maximum on an individual
conviction. United States v. White, 240 F.3d 127, 135 (2d
Cir. 2001). In such a case, moreover, this Court has
observed that it is “aware of no constitutionally cognizable
right to concurrent, rather than consecutive, sentences.” Id.
Accordingly, the stacking provisions set forth in Section
5G1.2(d) do not run afoul of Apprendi. See United States
v. White, 240 F.3d at 135; see also United States v.
McLean, 287 F.3d 127, 136-37 (2d Cir. 2002); United
States v. Outen, 286 F.3d 622, 639-40 (2d Cir. 2002);
United States v. Rivera, 282 F.3d 74, 76-77 (2d Cir. 2002).
Page 184
157
B. Discussion
Applying these standards, there is no question that the
District Court correctly sentenced Solomonyan. After
reviewing all of the counts of conviction, it found that
Solomonyan’s total offense level was 48, which carries a
Guidelines sentence of life imprisonment. (Solomonyan
A.533, 536). The Court subsequently determined that
Solomonyan’s total punishment would be 264 months’
incarceration. (Solomonyan A. 540). Because none of the
offenses for which Solomonyan was convicted carried a
statutory maximum penalty sufficient to impose that
sentence, the court sentenced him by “stacking” his
sentences on multiple counts of conviction. Thus, he was
sentenced to 60 months’ imprisonment on Count One; 120
months for Count Two; 60 months for Count Three; and
60 month for Count Four — all to run consecutively,
except for the last 36 months on Count Four. (Solomonyan
A.539). In addition, he was sentenced to 120 months’
imprisonment on each of Counts Five, Six, and Seven —
to run concurrently. (Solomonyan A. 539-40). None of
those sentences exceeded the statutory maximum for the
relevant offense.
This practice is expressly authorized — indeed,
required — by the Guidelines. Moreover, this Court has
expressly rejected constitutional challenges of exactly the
sort mounted by Solomonyan here, holding that “Apprendi
is inapplicable to a sentencing judge’s decision, when
required by the Guidelines (because the ‘total punishment’
exceeds the highest statutory maximum on any count), to
run sentences consecutively.” United States v. McLeod,
251 F.3d at 82. In McLeod, this Court expressly held that
Page 185
158
the “preponderance of the evidence standard was properly
applied to determinate [the defendant’s] relevant conduct,
despite the resulting consecutiveness of his sentences.” Id.
(internal quotation marks omitted).
In fact, Solomonyan acknowledges that his argument
is foreclosed both by the Guidelines and this Court’s prior
decisions. (Solomonyan Br. 59). Accordingly, this claim
should be rejected.
CONCLUSION
The judgments of conviction should be
affirmed.
Dated: New York, New York
December 15, 2010
Respectfully submitted,
PREET BHARARA,
United States Attorney for
the Southern District of New York,
Attorney for the United States
of America.
DAVID B. MASSEY,
MATTHEW L. SCHWARTZ,
ANDREW L. FISH,
Assistant United States Attorneys,
Of Counsel.
Page 186
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of
Appellate Procedure, the undersigned counsel hereby
certifies that this brief does not comply with the type-
volume limitation of Rule 32(a)(7)(B) but complies with
this Court’s December 6, 2008 order stating that the
Government may file a brief not to exceed 50,000 words.
As measured by the word-processing system used to
prepare this brief, there are 36,681 words in this brief.
PREET BHARARA,
United States Attorney for
the Southern District of New York
By: ANDREW L. FISH,
Assistant United States Attorney
Page 187
ANTI-VIRUS CERTIFICATION
Case Name: U.S. v. Solomonyan
Docket Number: 08-4211-cr(L)
I, Louis Bracco, hereby certify that the Appellee's Brief
submitted in PDF form as an e-mail attachment to
[email protected] in the above referenced
case, was scanned using CA Software Anti-Virus Release
8.3.02 (with updated virus definition file as of 12/15/2010)
and found to be VIRUS FREE.
Louis Bracco Record Press, Inc.
Dated: December 15, 2010
Page 188
CERTIFICATE OF SERVICE
2008-4211-cr(L) United States of America v. Solomonyan
I hereby certify that two copies of this Brief for the United States of America were sent by Regular First-Class Mail and Electronic delivery to:
Louis Fasulo, Esq. Fasulo, Shalley & DiMaggio 225 Broadway, Suite 715 New York, New York 10007 (212) 566-6212 [email protected] Seth Ginsburg, Esq. 225 Broadway, Suite 715 New York, NY 10007 (212) 537-9202 [email protected] Attorneys for Arthur Solomonyan
John Burke, Esq. 26 Court Street, Suite 2805 Brooklyn, New York11242 (718) 875-3707 [email protected] Attorney for Christian Spies Kelly Sharkey, Esq. 26 Court Street Suite 2805 Brooklyn, New York 11242 (718) 858 8843 [email protected] Attorney for Dimitry Vorobeychik
Herald Price Fahringer, Esq. 120 East 56th Street Suite 1150 New York, New York 10022 (212) 319-5351 [email protected] Attorney for Nikolai Nadirashvili James E. Neuman, Esq. 100 Lafayette Street, Suite 501 New York, NY 10013 (212)-966-5612 [email protected] Attorney for Ioseb Kharabadze Susan Tipograph, Esq. 350 Broadway, Suite 700 New York, NY 10013 212- 431-5360 [email protected] Attorney for Levan Chvelidze
Page 189
2
I also certify that the original and five copies were also shipped via Hand and Electronic delivery to:
Clerk of Court United States Court of Appeals, Second Circuit
United States Courthouse 500 Pearl Street, 3rd floor
New York, New York 10007 (212) 857-8576
on this 15th day of December 2010.
Notary Public:
_________________________
Sworn to me this December 15, 2010
NADIA R. OSWALD HAMID Notary Public, State of New York No. 01OS6101366 Qualified in Kings County Commission Expires November 10, 2011
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